that the judgment was on a different cause of action, and that different facts will be presented in this action, and different evidence be required to sustain them; but we do not think these objections well taken. The parties are the same, except that the injured party who has died is represented by his personal representative. It is true the statute provides that the proceeds shall go to his widow or children or next of kin, but the administrator "stands in the shoes of the deceased." The cause of action is the same. If the administrator recovers he must do so by reason of the same wrongful act on the part of the appellee company that enabled the intestate to recover.

It is suggested that the measure of damages is not the same; that the intestate might have recovered for suffering, loss of time, medical attendance, etc.; that the right to recover for these things died with him; and that by the statute a new cause of action is given for new injuries to other persons. By the survival of the action, the right of recovery and measure of damages must necessarily be different; but the gist of the action, the principal and permanent right of recovery, is on account of the destruction of the capacity and power of the intestate to earn money and accumulate wealth for his own support and benefit, and the support and benefit of his family or next of kin. The central and paramount thing or item for which damages may be recovered is the same, whether the recovery is by the intestate in his lifetime or by his personal representative after his death. In minor particulars the measure of damages differs, but this does not warrant such a construction of the statute as contended for by counsel for appellants.

It is further argued that the former judgment is not a bar, for the reason that different facts are here presented, and different evidence is required to sustain the suit. While it may be true that some items of evidence may be competent or even necessary in one case that is not in the other, and the method of proof may differ, yet it remains a fact that the action, in either case, is based on the negligence of the appellee, causing the same and identical injury to the appellant's intestate, and the damages sustained in either case grow out of the injury to the intestate caused by the negligence of the appellee.

It is contended that the section of the statute (section 284, supra) gives a right of action in favor of the administrator for the benefit of the widow and children, if any, or the next of kin. This is true in a certain sense. Without the statute the action could not be maintained; but, in order that it may be maintained, the intestate must have had a right of action

* * *

against the person whose wrongful act or omission caused the injury which he could have maintained had he lived, and when, as in this case, the injured party has prosecuted his action for damages on account of the injury to final judgment, and the judgment has been satisfied prior to his death, he, if he had lived, could not have prosecuted an action against the person causing the injury for the same act or omission. The construction we have given to this section of the statute is well supported. In the case of Burns v. Railroad Co., 113 Ind. 169, in speaking of the right of action under this statute, the court says: "Although the right thus created is purely of statutory origin, its nature and incidents, and the conditions upon which a recovery may be had, are in no essential respect different from those which relate to an ordinary civil action to recover damages for a civil injury. The recovery is not a penalty inflicted by way of punishment for the money, but is merely compensatory of the damages sustained by the heirs or next of kiù, who had, or are supposed to have had, a pecuniary interest in the life of the intestate. Railroad Co. v. Lowdermilk, 15 Ind. 120. In Stewart v. Railroad Co., 103 Ind. 44, 21 Am. & Eng. R. Cas. 209, it is held that, as the right to sue is purely statutory and in derogation of the common law, the statute must be strictly construed, and a case brought clearly within its provisions, to enable a plaintiff to recover. The statutes of this state, and of some of the other states, are moulded in a measure after Lord Campbell's act. 85 St. at Large, p. 693; 9 & 10 Vict. c. 93, which is as follows: "6. (English Authorities.) Section 1. Whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default, is such as would (if death had not ensued) have entitled the party injured to maintain an 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 would amount in law to felony. Sec. 2. Every 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; 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, after deducting the costs in recovering from the defendant, shall be di vided among the before-mentioned parties in such shares as

the jury by their verdict shall find and direct. Sec. 3. Provided, always, that not more than one action shall lie for and in respect of the same subject-matter of complaint, and that every such action shall be commenced within twelve calendar months after the death of such deceased person." Under this act it was held, in an action against a railway company, that the cause of action was the defendant's negligence which had been satisfied in the deceased's lifetime, and that the death of the injured party did not create a fresh cause of action. Read v. Railway Co., L. R., 3 Q. B. 555; Griffiths v. Earl of Dudley, 9 Q. B. Div. 357; Haigh v. Steam Packet Co., Law J., 52 Q. B. Div. (N. S.) 395, 640. In the latter case it was held that the personal representatives cannot maintain an action under Lord Campbell's act when the deceased, if he had survived, would not have been entitled to recover. In that case, by a stipulation in the ticket by virtue of which the deceased was being carried, the company was exempt from liability for injury resulting to the passenger. The wording of Lord Campbell's act and the statutes of this state differ some, but are in effect the same. The purpose of each was to give to the personal representative of the deceased a right of action if the deceased, at the instant of his death, would have had a right of action for the same act or omission had he survived. In the former it is provided in effect that if the wrongful act, neglect, or default causing death is such as would, if death had not ensued, entitle the party injured to maintain an action, then 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; and the second section provides that the action shall be for the benefit of the wife, husband, parent, and child of the person injured, and be brought in the name of his executor or administrator; and the third section provides that but one action shall lie for the same subject-matter of complaint. While the statute of this state provides that the action may be prosecuted in the name of the personal representative if the injured party might, had he lived, have maintained an action for the injury caused by the wrong ful omission of the other party, and that the damages recovered shall inure to the benefit of the widow and children, if any, or next of kin, such act gives a right of action to the personal representative of the deceased for the wrongful act only in cases where the injured party had a right of action at the instant of his death, which he might have maintained if he had survived.

The court of appeals of New York, in construing a like statute, held that when the injured party brought suit and recovered damages in his lifetime, and his death afterward

resulted from the injury, his personal representatives could not maintain an action. Littlewood v. Mayor, etc., 89 N. Y. 24. See, also, Hegerich v. Keddie, 99 N. Y. 258. Under a like statute in Illinois, the supreme court of that state held that the cause of action is the wrongful act causing the death and not the death itself. Holton v. Daly, 106 Ill. 131. The statute of Tennessee (section 2291, Code) provides that "the right of action which a person who dies from injuries received from another, or whose death is caused by the wrongful act or omission of another, would have had against the wrongdoer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his personal representatives for the benefit of his widow and next of kin, free from the claims of creditors." The supreme court of that state held that the cause of action accrued at the date of the injury, and is the same whether brought by him during life or by his personal representatives after death. Fowlkes v. Railroad Co., 9 Heisk. 829. While the language of the statutes differ slightly, the purpose of each is to give to the personal representatives of the injured party the right to maintain an action for the wrongful act or omission causing the injury against the party guilty of the wrong, and is, in effect, but declaring that the cause of action shall survive and be maintained by the personal representatives for the benefit of the parties named in the act. The action is bottomed on the same wrongful act of the wrong-doer, whether it be prosecuted by the injured party in his lifetime, or by his personal representatives after his death. The Supreme Court of Vermont in Legg v. Britton, 24 Atl. Rep. 1016, held that where the injured party had commenced suit in his lifetime, and then died, and by virtue of a statute of that state his administrator prosecuted the cause to final judgment, it was held that it was a bar to another action, under a statute practically the same as Lord Campbell's act and the statute of this state.

As we have heretofore said, it was certainly not the intention of the legislature to subject the party guilty of the wrongful act or omission resulting in an injury to another to a second action for such act, after the injured party had prosecuted to judgment one action in his lifetime, and recovered full compensation for the injuries inflicted, and which would bar him personally from maintaining any future action on account of the same injury; for the act, as we construe it, clearly declares that the personal representatives of the injured party, when death ensues, may maintain the action only in case the injured party might, at the instant of his death, have maintained the action if he had lived. In this case the injured party at the time of his death could not have main

34 A. & E. R. Cas.-6

tained an action for the same act or omission had he lived; hence there is no right of action given to his personal representatives by the statute.

The conclusion we have reached leads to an affirmance of the judgment. Judgment affirmed, with costs.

NELSON'S ADM'R

v.

CHESAPEAKE & OHIO R. Co.

(88 Virginia, 971.)

Action for Death-Conflict of Laws.-Where the statutes of two states relating to actions for death are not inconsistent, although differing in some particulars, both requiring the action to be brought by the personal representative, limiting the recovery to the same amount and giving the benefit to the same persons, a cause of action given by the statute of the state where the injury occurred may be enforced in the other. A recovery in such action will be a complete protection to the defendant against a suit for the same cause in the other state.

Injury to Employe--Dangerous Bridge-Contributory Negligence.-The fact that a track-laborer when struck by a bridge was standing on top of a box car, upon the top of which he had been ordered by his superior to go, cannot be held as Latter of law to have been negligent on his part; the question is for the jury.

ERROR to Richmond circuit court.

The declaration states that the deceased, on the 9th of September, 1889, was in the employ of the defendant's company as a track-laborer on the line of its road in the State of West Virginia; that on that day the company, desiring to transfer the deceased from the point where he was then employed to Hurricane, another point on its line, in the same state, by its agents ordered him to get on top of onc of the defendant's box cars, with a view to his being carried to the last-mentioned point; that while the train was on the way thither, and while it was passing over a certain bridge on the defendant's road, the deceased, without fault on his part, though standing on top of the said box car at the time, was instantly killed by being knocked off the car by a piece of timber, on the bridge, only two feet higher than the top of the said car, which connected the sides of the bridge, and which had been negligently allowed to re