three hundred dollars; three hundred dollars and over; money and promissory note.

(12) Did any of his next of kin depend on him for support? A. No. (13) Did Philip Weber take defendant's train as a passenger, at Durango, Colorado, on October 28 or 29, 1881, intending to go to Atchison, Kansas? A. Suppose he did.

(14) Did he get off said train at Hutchinson, Kansas?

A. Yes.

(15) Why did he leave defendant's train at said station? A. Can't tell. (16) Was he sick and suffering from the result of drinking intoxicating liquors to excess? A. Think he was.

(17) Was said Philip Weber placed in an east-bound train passenger car of the defendant's at Hutchinson, Kansas, by the city officers of that place on the thirty-first day of October, 1881? A. Yes.

(18) Had he been in Hutchinson since the day before, suffering from the effects of excessive drinking? A. Think he was.

(19) Was he placed in said car by any of the agents or servants of the defendant? A. No.

(20) Was he capable, at the time he was placed in said car, of taking care of himself? A. With proper care.

(21) Could said Philip Weber sit in the seats provided for passengers in said car? A. Yes.

(22) Was he in a fit condition to travel on defendant's train without injuring him? A. Think not.

(23) Did said Philip Weber, immediately after being placed in a seat in said car, slip or fall therefrom into the aisle or passage-way thereof, and ride laying in such place a part of the way going to Newton? A. Yes.

(24) What is the distance from Hutchinson to Newton? A. Thirty-three miles.

(25) What is the distance from Hutchinson to Atchison? A. Two hundred and eighteen miles.

(26) Did the agents or servants of the defendant know that said Philip Weber had been placed in said car, and the condition he was in, until after the train had started to leave Hutchinson? A. No.

(27) Was it necessary to remove Philip Weber from defendant's train at Newton? A. Do not know.

(28) Was he so removed by, and under the direction of, one of the police officers of the city of Newton? A. No.

(29) Did the city marshal of the city of Newton ascertain that said Philip Weber was at the defendant's station, and did said marshal take charge and control of him immediately after his removal from said car? A. After said Philip Weber had lain on the stone steps of the platform for over one hour in an unconscious state, then the city marshal took charge of said Philip Weber.

(30) Did the city marshal of Newton have charge of said Philip Weber from the time he was removed from said car until about two o'clock P. M. of November 1, 1881, when he was removed to the Howard house? A. After the expiration of one hour or over.

(31) Was Philip Weber kept in the city prison and engine-house from about 8:30 P. M. of October 31st until he was removed to the Howard house? A. From nine o'clock P. M. of October 31st he was.

(32) Were said places cold and unsuited for the occupancy of a person in his condition? A. Yes.

(33) Did not his confinement in said places have more to do with hastening his death than any other exposure he was subjected to? A. It might have had as much, but not more.

(34) Was said Philip Weber conscious at the time he was placed on the defendant's train at Hutchinson? A. He was.

(35) Was he in a fit mental condition to provide for his own safety on the train? A. At times he was.

(36) Shortly after leaving Hutchinson, and while said train was in full motion, did he not try to jump off of said train, and was he not prevented from so doing by one of the defendant's employes? A. We doubt it.

(37) Did he not endeavor to escape from the car in which he was placed three times, intending to jump therefrom while said train was in full motion, and was it not necessary for the train hands to watch him to prevent his so doing? A. No.

(38) Did the employes of the defendant watch and care for said Philip Weber while he was in said car, and prevent him from injuring himself by jumping off? A. No.

(39) Was not Philip Weber, at the time he was removed from the train at Newton, in such a condition as to render it unsafe for him to continue his journey to Atchison, Kansas, without medical treatment or any one to care for him? 4. We think he was.

(40) Could not Philip Weber receive better care from the city authorities of the city of Newton than it was possible for the defendant's employes to give him on the train? A. Yes.

(41) Was he out of his proper state of mind and delirious while in said car; did he remove his shoes, complain that they were full of bugs and worms, and conduct himself in such a way as to annoy and frighten other passengers in said car? A. Yes.

(42) Did a number of passengers leave said car and go to other parts of the train because of his conduct? A. A few.

(43) Was his habit of so drinking increasing? A. Don't know.

(44) If said Philip Weber had lived, was it probable that his habits would have improved? A. Do not know.

(45) Was the sickness of Philip Weber just before his death caused by excessive drinking? A. Do not know.

(46) Did he have the delirium tremens?

A. Had delirious tremors.

(47) Did he have a disease of that nature? A. Yes.

(48) Was his life of any pecuniary value to his next of kin at the time of his death? A. No.

(49) Were the habits of the deceased such at the time of his death that they would necessarily shorten his life, disable him from performing labor or transacting business, and make his expenses equal to earnings? A. Yes.

(50) Strictly, as a pecuniary question, as a mere matter of money, what was the loss of the next of kin of said Philip Weber by his death? A. No loss.

(51) State wherein the next of kin sustained any pecuniary loss by the death of Philip Weber, and in what did that loss consist? A. Sustained no loss.

(52) What is the probable amount that the deceased would have earned or made per year had he lived? A. When in health, six hundred dollars.

(53) What would the expense of the deceased probably have been per year had he lived? A. Depends upon circumstances.

(54) How long would said Philip Weber probably have lived if he had recovered from his last sickness? A. Probably a natural life-time.

(55) If he had lived, how much more property or money would his next of kin have received from his accumulations than they did receive? A. Cannot tell.

(56) Of what other pecuniary value was the life of Philip Weber to his next of kin? A. No other pecuniary value.

(57) At the time of his death was he not in poor health and bad habits, caused by excessive drinking? A. In bad health; not necessarily caused by excessive drinking.

(60) What amount, if anything, do you find the plaintiff is entitled to recover as a pecuniary compensation to the next of kin for the loss of said Philip Weber? A. Four hundred dollars.

(64) Is it not a fact that Philip Weber was in such a condition, at the time he was removed from the train, that it was unsafe for him to continue his journey to Atchison, Kansas? A. Without proper care, he was.

(65) Is it not a fact that, when the conductor had Weber removed from the train at Newton, he placed him in charge of one of the policemen of said city, and told him to do everything he could for him, as he was in such condition that he could not take him on the train? A. No.

(66) Is it not a fact that Weber was turned over to the city marshal and overseer of the poor at Newton before the train left the depot in that place? A. He was not.

(67) Is it not a fact that the city marshal and overseer of the poor at Newton tried to get a place at the hotels and boarding-houses to take Weber, and failed on account of Weber's filthy condition? 4. The lack of money the cause, and not his filthy condition.

(68) Is it not a fact that the city marshal and overseer of the poor at Newton took Weber to the city jail only after having failed to get him into a hotel or boarding house, and after having been directed so to do by the county physician? A. No.

(69) Did Weber contract any disease or sustain any injury during the time after he was taken from the car, and before he was placed under the charge of the city marshal; and if so, how much, and to what extent? 4. Sustained an injury which resulted in his death.

(70) Was Weber's health in any manner injured, or his death in any manner hastened by, his accommodations and treatment after he was taken charge of by the city marshal and overseer of the poor? A. It was.

(71) Was not Weber's death caused by the delirium tremens? A. No. (72) Was Weber's death caused or hastened by his exposure while in the city prison? A. In part.

(73) Was not Weber's death caused by the excessive use of intoxicating drinks, and his confinement in the city prison at Newton, Kansas? A. In part.

(75) Did not Weber have a sufficient estate to pay all funeral and burial expenses? A. Yes.

The general verdict of the jury was in favor of the plaintiff, and assessed the damages at $400. The defendant moved the court for judgment in favor of the defendant, upon the special findings of the jury, notwithstanding the general verdict; which motion the court overruled, and ordered judgment for the sum of $217.50, which was the amount found by the jury, less the funeral expenses which were disallowed by the court. The defendant moved for a new trial upon the ground of excessive damages, appearing to have been given under the influence of passion and prejudice; that the findings and verdict of the jury are not sustained by the evidence; and for errors of law occurring at the trial. This motion was overruled. The defendant duly excepted to the ruling of the court, and brings error to this court. A. A. Hurd and Mills & Wells, for plaintiff in error.

Everest & Waggener and Webb & Martin, for defendant in error. JOHNSTON, J. The plaintiff, who is the personal representative and brother of Philip Weber, deceased, brought this action in the district court of Atchison county, in behalf of the next of kin, to recover the v.6p,no.12-56

damages suffered by them in the death of Philip Weber, caused, as plaintiff alleges, by the wrongful act and neglect of the railroad company. The verdict and judgment were in favor of the plaintiff, and the defendant comes here assigning error on several exceptions that were taken during the trial.

It is first contended that the court erred in overruling the motion. of defendant for judgment in its favor on the special findings returned by the jury. Upon the trial of the cause the defendant sought to show, among other things, that for several years prior to his death Philip Weber lived a reckless and dissipated life, and that, by reason of the excessive use of intoxicating liquors, and other causes, his condition at the time of the alleged injury was such that his survivors. suffered no pecuniary loss in his death. The jury, in answer to special questions submitted to them, found, as will be seen, that none of his next of kin depended upon him for support; that his life was of no pecuniary value to them; and that they sustained no loss by his death.

The

The claim of counsel for the defendant is that, notwithstanding the death of Weber may have been caused by the wrongful act or omission of the railroad company, yet as there was no actual damage or pecuniary loss sustained by his next of kin, not even nominal damages can be recovered. In this we think counsel are mistaken. deceased was entitled to his life, and presumably the next of kin had some interest in his existence. A right of action is expressly given by the statute in behalf of the next of kin, where the death of one is caused by the wrongful act or omission of another, provided the deceased, if he had lived, might have maintained an action for the injury caused by the same wrongful act or omission. The law infers an injury whenever a legal right has been violated; and every injury imports a damage. As a general rule, where the law gives an action for a wrongful act, the doing of the act itself imports a damage, and even if no actual pecuniary damage may have been shown or suffered, still the legal implication of damage follows the wrongful act, and nominal damages, at least, may be recovered. Some of the English courts have held that if no actual loss is shown nominal damages are not recoverable; but the American courts, so far as our observation goes, uniformly hold, under statutes similar to our own, that, where a person has met with death caused by the wrongful act, neglect, or default of another, whenever there are next of kin, nominal damages, at least, may be recovered. Lehman v. City of Brooklyn, 29 Barb. 234; Dickens v. Railroad Co. 1 Abb. Ct. App. 504; Quin v. Moore, 15 N. Y. 432; Ihl v. Forty-Second Street, etc., R. Co. 47 N. Y. 317; Chicago & Alton R. Co. v. Shannon, 43 Ill. 338; Chicago & N. W. R. Co. v. Swett, 45 Ill. 197; City of Chicago v. Scholten, 75 Ill. 468; Thomp. Neg. 1293.

The further point is made by counsel for the railroad company, that the findings and verdict of the jury are not sustained by the evidence.

In response to special questions submitted by the court, the following findings of fact were returned by the jury:

"Was he so removed by and under the direction of one of the police officers of the city of Newton? Answer. No. Did the city marshal of the city of Newton ascertain that said Philip Weber was at defendant's station, and did said marshal take charge and control of him immediately after his removal from said car? A. After said Philip Weber had lain on the stone steps of the platform for over one hour in an unconscious state, then the city marshal took charge of said Philip Weber. Did the city marshal of Newton have charge of said Philip Weber from the time he was removed from said car until about two o'clock P. M. of November 1, 1881, when he was removed to the Howard House? A. After the expiration of one hour or over. Is it not a fact that, when the conductor had Weber removed from the train at Newton, he placed him in charge of one of the policemen of said city, and told him to do everything he could for him, as he was in such condition that he could not take him on the train? A. No. Is it not a fact that Weber was turned over to the city marshal and overseer of the poor at Newton before the train left the depot in that place? A. He was not. Did Weber contract any disease or sustain any injury during the time after he was taken from the car and before he was placed under the charge of the city marshal; and if so, how much, and to what extent? A. Sustained an injury which resulted in his death."

In these findings the jury seem to have either mistaken or purposely disregarded the testimony upon the facts inquired about. The testimony is that upon the arrival of the train at Newton a special policeman of that city, who was doing duty at the station of the railroad company, with the assistance of others, removed Weber, who was then in an unconscious state, from the train. The train remained at the station about 10 minutes. Within a few minutes after he was removed, and within 10 minutes after the arrival of the train, and before its departure, Weber was turned over to and placed in charge of the city marshal and overseer of the poor. Henry Meyer, who was the overseer of the poor, says that he took charge of him within from 8 to 10 minutes after the train came in, and immediately sent for a physician, and made effort to find a hotel or boarding-house where he could be received and cared for. This is, in effect, the testimony of several other witnesses who were there present; and in an examination of all the testimony in the record nothing is found contradicting it. Most of these findings are, therefore, untrue. Their materiality, when the issues and facts of the case are considered, will not be questioned. When Weber was placed upon the train at Hutchinson, his condition was unknown to the employes of the company in charge of the train. He had been in Hutchinson since the day before, suffering from the effects of the excessive use of intoxicating liquors. He was found by the officers of that city lying on one of the streets in a spasm, and, as they state, apparently afflicted with delirium tremens. Shortly after he was placed upon defendant's train at Hutchinson, he was seized with a fit, and fell from his seat upon the floor, where he struggled for some time. While going from Hutchinson to Newton, a distance of 33 miles, he had several such attacks. When he