action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony;" and it is also provided that, "every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; that in every such action the jury may give such damages as they may think proportionate to the injury resulting from such death to the parties, respectively, for whose benefit such action shall be brought, and that the amount so recovered, after deducting the cost not recovered from the defendant, shall be divided amongst the before mentioned parties, in such shares as the jury by their verdict shall find and direct."

Closely following this act, most of the states have modeled statutes thereon; not, however, as a rule, permitting the jury to determine the question of distribution, but directing that the recovery should be distributed in accordance with the general statutes controlling the disposition of estates among the heirs.

Naturally carriers, more frequently than others, except possibly manufacturers employing dangerous machinery, are amenable to the provisions referred to. Some of the provisions extend the benefits of the act to parties not coming within the provisions of the English statute.

§ 169. Criminal Action for Negligence Causing Death.

The first statute passed in Massachusetts making it an indictable offense for a common carrier negligently to cause the death of a passenger, was the Statute of 1840, chap. 80, which provided that "If the life of any person being a passenger shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, steamboat, stage coach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents in this commonwealth, such proprietor or proprietors and common carriers shall be liable to a fine..

to be recovered by indictment, to the use of the executor or administrator of the deceased person," etc. Statute of 1833, chap. 414, subjected a railroad corporation to the same liability as the statute of 1840, if from the same causes, "the life of any person not being a passenger or employé of such corporation shall be lost. such person being in the exercise of due care and diligence,” etc. In the general statutes, provisions of the statute of 1840, § 80. were re-enacted and so far as they relate to railroad corporations are contained in chapter 63, § 97. Provisions of the Statute of 1853, chap. 414, were re-enacted in chap. 63 and 88. So far as the provisions of the statutes of 1840, chap. 80, relate to persons or corporations other than railroads, they are re-enacted in General Statutes, chap. 160, § 34. Relative to offenses against the person in revision of the consolidation of 1874 of all general acts relating to railroads, the provisions of the General Statutes, chap. 63, §§ 97, 98, are as follows: "If by reason of negligence or carelessness of a railroad corporation, or of the unfitness or gross negligence or carelessness of its servants or agents, while engaged in the business, the life of any person being a passenger is lost, or the life of any person being in the exercise of due diligence and not being a passenger, or in the employment of such corporation, is lost, in either case the corporation shall be punished," etc.' The conclusion from a comparison of these statutes is that the legis lature designed to subject the corporation to the penalty for causing the death of a passenger, though such passenger might have been wanting in the exercise of due care. It would not be reasonable to suppose that in all these statutes and revisions, the omission to require due care from a passenger and the express requirement of it from other persons is unmeaning, and the due care is required alike in both cases. The statute was designed in part to impose a punishment for the carelessness of defendant or its servants; and, as has been said, the penalty "is doubtless to be greater or smaller, within the prescribed maximum and minimum, according to the degree of blame which attaches to the defendants, and not according to the loss sustained by the widow and heirs of the deceased." Section 164 of the same chapter, which provided

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Statutes 1874, chap. 272, § 163.

'Carey v. Berkshire R. Co. 1 Cush. 475. See also Com. v. Eastern R. Co. 5 Gray, 473; Com. v. Boston & A. R. Co. 121 Mass. 36.

that in certain circumstances a railroad company shall be subject to a fine recoverable by indictment as provided in § 163, for an injury to a person not a passenger "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 willful negli gence or was acting in violation of the law, and that such gross or willful negligence or unlawful act contributed to the injury" is a further indication that one purpose of the legislature was to punish the defendant for his negligence.

By the Statute of 1881, chap. 199, $2, the burden is imposed on the defendant of showing in the case of one not a passenger injured at a crossing, in addition to the mere want of ordinary care, gross or willful negligence; and under this section it was held that where the jury might have found that no signal was given until the engine was within from three to six rods of the crossing or even less, at twilight, and the deceased, a young girl of sixteen, was within three or four feet of the track when two sharp danger whistles were then given and that she started to run across the track, it could not be said as matter of law that the burden imposed by the statute was maintained by this proof; that she attempted to cross the track under these circumstances, although the track was exposed for a mile and the headlight of the locomotive was burning; as she had a right to rely to some extent upon the signals of warning which the law required to be given.' The want of such signals may have led to her being in that situation. This is a matter of inference.

Maine and New Hampshire are other states, in which the proceedings in similar cases are by indictment. The statute of Maine expressly requires that the deceased, though a passenger, should be in the exercise of due care. The statute of New Hampshire makes no distinction between passengers and other persons not in the employment of the railroad company, and makes no allusion to any question of due care on the part of the person killed. The provisions for the fine and its disposition are similar to those contained in the Massachusetts statute; and in State v. Manchester & L. R. Co. 52 N. Y. 258, the proceedings

'Copley v. New Haven & N. R. Co. 136 Mass. 6. Colony & N. R. Co. 100 Mass. 208; Chaffee v. Mass. 108.

See also Gaynor v. Old Boston & L. R. Corp. 104

though in the name of the state are held to be substantially a civil proceeding to recover damages and to be governed by the same rules as far as practicable as govern civil actions.

§ 170. State Statutes Regarding Actions for Death Caused by Another's Negligence.

In most of the states in this country statutes have been passed similar to Lord Campbell's Act.' It is not attempted here to present more than the general features of state legislation, authorizing the action, by those who either in legal contemplation, from their relation to the deceased, or from proof of dependence on him, have suffered loss by his death.

In England and in most of the states of the Union, a remedy in similar cases is given by statute to the personal representatives of the deceased to recover by civil action, damages for the benefit of the widow, children, next of kin or those dependent upon deceased, and these statutes generally provide that the action may be maintained when the circumstances are such that the deceased, if he had survived, might have maintained an action for the injuries received. As the action for damages for injuries causing death by defendant's negligence was unknown to the common law, and it is of statutory origin, and, as such legislation is in derogation of common law, it must be strictly construed."

While the action for personal injury is spoken of as surviving. as there previously was no responsibility to the estate, these statutes authorizing action for a death caused by the negligence of another are by many of the courts held to create a new cause of

'Johnston v. Cleveland & T. R. Co. 7 Ohio St. 336; Kansas Pac. R. Co. v. Müller, 2 Colo. 442; Tilley v. Hudson River R. Co. 24 N. Y. 471; 2 Thomp. Neg. 1294-1309. See Louisville, N. A. & C. R. Co. v. Buck, 2 L. R. A. 520, 116 Ind. 566; Cleveland R. M. Co. v. Corrigan, 3 L. R. A. 385, notes, 46 Ohio St. 283.

'Quincy Coal Co. v. Hood, 77 Ill. 68; McKeigue v. Janesville, 68 Wis. 50. Stewart v. Terre Haute & I. R. Co. 1 West. Rep. 152, 103 Ind. 44; Grosso v. Delaware, L. & W. R. Co. 50 N. J. L. 317; Turberville v. Stamp, 1 Comyns, 32, 2 Salk. 647; Filliter v. Phippard, 11 Q. B. 347. See Louisville, N. A. & C. R. Co. v. Buck, 2 L. R. A. 520, 116 Ind. 566; Missouri Pac. R. Co. v. Lewis, 2 L. R. A. 67, 24 Neb. 848; Cleveland R. M. Co. v. Corrigan, 3 L. R. A. 385, 46 Ohio St. 283.

action unknown to the common law. They are said to impose a new liability and not to merely remove a bar to a remedy, such as is interposed by the Statute of Limitations, which if withdrawn by the repeal of the statute would allow an action to be maintained for the original cause. What the new liability shall be and whether the original liability shall be destroyed or under what conditions the new liability was created, or the original liability continued, shall be controlled, must be determined by the law of the state where the injury occurs.'

The Code of Alabama, § 2641, which gives an action for damages to the personal representative of a deceased person whose death was "caused by the wrongful act or omission of another," is limited to cases in which the deceased person himself, if death had not ensued, might have maintained an action for the same act or omission; and since contributory negligence on the part of the deceased would have been a complete defense to an action by him it is equally a defense to an action by his personal representative.❜ The rule is the same in Indiana.'

Under the Georgia Code, § 3033, a railroad company is liable in damages for the wrongful homicide by its depot agent, in his office, of one lawfully there for the purpose of transacting business with him, and insanity of such agent is not available in its defense, where the company employed him with knowledge of his insane condition or of his being subject to sudden fits of insanity.*

The statute of Illinois,' does not, as does the Act of February 1, 1853, give a new right of action to the administrator upon the death of his intestate, because of the negligence of the defendant. It simply continues an existing action, or right of action, and prevents its abating by the death of the plaintiff or party having the right of action. Plaintiff must allege and prove that deceased left a widow and children, or next of kin, a failure to show which

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'Whitford v. Panama R. Co. 23 N. Y. 470; Blake v. Midland R. Co. 10 Eng. L. & Eq. 443; Richardson v. New York Cent. R. Co. 98 Mass. 85; Davis v. New York & N. E. R. Co. 3 New Eng. Rep. 408, 143 Mass. 301. 'King v. Henkie, 80 Ala. 505.

'Indianapolis, P. & C. R. Co. v. Keely, 23 Ind. 133.

Christian v. Columbus & R. R. Co. 79 Ga. 460.

'Rev. Stat. 1874, chap. 3, § 123.

Chicago & E. I. R. Co. v. O'Connor, 6 West. Rep. 773, 119 Ill. 586.