This is an action for damages in killing plaintiff’s intestate by the alleged negligence of the defendant. The evidence discloses that the de*973fendant was backing its train on to a crossing at the speed of three or four miles an hour, and that the hack driver, carrying plaintiff’s intestate, came in view of the backing train in time to have stopped and avoided the collision, but thinking and saying he could ‘ ‘make it” he rushed his horse to a high speed but failed to make it, and the intestate was killed.
The action was against the driver and the defendant company. The jury brought in a verdict finding the company guilty of negligence, but the driver not guilty of negligence.
We have examined the record of this case and find that we must order a new trial for error in the admission of evidence of the number and age of’ intestate’s children, etc. This is the defendant’s third exception and relates to the measure of damages. No damages could be recovered at common law for killing another, because it was a personal injury and the remedy was lost by the death, and the remedy did not survive. The remedy in England and in this country is given by statute. In the former, the rule of damages was “the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased.” The English statute required the jury to apportion the damages among the beneficiaries as therein provided, and that made it necessary to take proof of the number, names, ages, etc., of the children. Our statute (Code, Section 1499) allows only such damages as “are a fair and just compensation for the pecuniary injury resulting from the death,” and the amount recovered is distributed in the same manner as personal property in case of intestacy. Code, Section 1500. It will be observed that under our Statute the pecuniary injury is the measure. That means the value of the labor or the amount *974of the earnings of the deceased if he had lived, without regard to the number of the recipients of his labor, and the jury in arriving at such value are allowed to know by proofs whether he was an industrious oí-an idle man — honest or dishonest — drinking or sober man, and the like; and in that way the jury worked out the pecuniary damage sustained by the family. Nothing is allowed as a punishment to the defendant, nor as a solace to the plaintiff. The few decisions in our State will be found in Collier v. Arrington, 61 N. C., 356; Kesler v. Smith, 66 N. C., 154; Burton v. Railroad, 82 N. C., 504.
His Honor instructed the jury: “You can consider the number of her infant children and their ages, only so far as that shows the jury her opportunity for effort .and helps them to put a pecuniary value on the intellectual and moral training that she might be able to give them while they were infants and under her care. You will not allow anything to console these children for the great grief that they suffer in the loss of their mother. ” This would be so, if the necessities of the family, and not the value of the life of the deceased were the rule. See cases supra. Besides, that view would tend to violate the rule above stated, i. e., it would furnish a motive to the jury to allow damages beyond the value of the decedent’s life as an industrious or idle parent.
We must therefo?-e order another trial, and we think this a proper case to allow the whole matter to he retried.