the servant's knowledge of the danger, by leading him to believe, when he is next exposed to it, that it has been removed, or by putting him in some way off his guard.1

The notice or facts from which knowledge is inferred in the case of a person whose faculties are fully developed, and who is acquainted with the service he is to perform, or with the dangerous character of the machinery, may not affect with knowledge a person of immature judgment and wanting in the experience which would direct his attention to the hazards, and put him on his guard.2

4

Burden of Proof. -The burden of proof is on the servant to show that the company was negligent, and that his own negligence did not contribute to the injury; and where the injury was caused by defects in the road or its appointments, that the company knew or ought to have known them, or negligently employed incompetent persons to construct or repair them; 5 and where it is alleged to have been caused by the incompetency of fellow-servants, that the servant was incompetent, and the com

662; McGowan v. St. Louis & I. M. R. Co, 61 Mo. 528; Conroy v. Vulcan Iron Works, 6 Mo. App. 102, 62 Mo. 35; Clarke v. Holmes, 7 Hurl. & N. 937, 6 Hurl. & N. 349; Holmes v. Worthington, 2 Fost & F. 533. Compare Fort Wayne, J., & S. R. Co. v. Gildersleeve, 33 Mich. 133.

1 See Marquette, H., & O. R. Co. v. Spear, 6 Northwest. Rep. 202.

2 Coombs v. New Bedford Cordage Co., 102 Mass. 572; Sullivan v. India Man. Co., 113 Mass. 396; O'Connor v. Adams, 120 Mass. 427; Chicago & N. W. R. Co. v. Bayfield, 37 Mich. 205, 212; Hill v. Gust, 55 Ind. 45; Johnson v. Bruner, 61 Pa. St. 58; Union Pacific R. Co. v. Fort, 17 Wall. 553; Dowling v. Allen, 6 Mo. App. 195; Bridges v. St. Louis, I. M., & S. R. Co., 6 Mo. App. 389; Grizzle v. Frost, 3 Fost. & F. 622.

3 Steffen v. Chicago & N. W. R. Co., 46 Wis. 259; Mobile & O. R. Co. v. Thomas, 42 Ala. 672; Way v. Ill. Cent. R. Co., 40 Iowa, 341; Price v. Henagan, 5 Brad. (Ill.) 234; Laning v. New York Cent. R. Co., 49 N. Y. 521, 529; Beaulieu v. Portland Co., 48 Me. 291; Atlanta & R. A. L. R. Co. v. Campbell, 56 Ga. 586, 53 Ga. 488; Columbus & X. R. Co. v. Webb,

12 Ohio St. 475, 496; Rose v. Boston & A.
R. Co., 58 N. Y. 217; Henry v. Staten
Island R. Co., 10 N. Y. Week. Dig. 430.

4 Way v. Ill. Cent. R. Co., 40 Iowa,
341; Illinois Cent. R. Co. v. Houck, 72
Ill. 285; Mad River & L. E. R. Co. v.
Barber, 5 Ohio St. 541, 568; Belair v.
Chicago & N. W. R. Co., 43 Iowa, 662;
Central R. & B. Co. v. Kelly, 58 Ga. 107;
Georgia, R., & B. Co. v. Kenney, 58 Ga.
485; Central, R., & B. Co. v. Sears, 59
Ga. 436. Contra, Baltimore & O. R. Co.
v. Whittington, 30 Gratt. 805; Hough v.
Texas & P. R. Co., 100 U. S. 213.

5 McMillan v. Saratoga & W. R. Co., 20 Barb. 449; Wright v. New York Cent. R. Co., 25 N. Y. 562, 566; Gilman v. Eastern R. Co., 10 Allen, 233, 239, 13 Allen, 433; Davis v. Detroit & M. R. Co., 20 Mich. 105; East St. Louis P. & P. Co. v. Hightower, 92 Ill. 139; Mansfield Coal & C. Co. v. McEnery, 37 Leg. Int. 28. As to what agent or employee is competent to receive notice which will bind the company, see Locke v. Sioux City & P. R. Co., 46 Iowa, 109; Mobile & O. R. Co. v. Thomas, 42 Ala. 672; Lewis v. St. Louis & I. M. R. Co., 59 Mo. 495.

pany knew or ought to have known of such incompetency; and he must show that he did not himself, before the injury, know of such defects or incompetency.2 The company's negligence is not to be inferred from the fact of injury by a collision of trains, or by an explosion of engines, even in jurisdictions where negligence is implied from the collision or explosion in case of injuries to passengers or third persons.3

Evidence. Evidence of a servant's reputation as a careless or unskilful one is admissible to show the company's knowledge of his character. The evidence of the reputation of a machine as a defective one has been admitted.5 Evidence of specific acts of negligence of the servant, where conduct is in question, is admissible, if communicated to the company before the injury; but not otherwise. The declarations of a general agent of the company, having power to discharge the servant by whose alleged negligence the injury occurred, are admissible to prove such agent's knowledge of the servant's incompetency. Proof of the servant's subsequent discharge from the company's service is not admissible. The instructions to servants as to the use of machinery are admissible in the master's favor, although not known to the injured servant.9

The company may maintain an action against a servant for injuries to its property caused by his negligence.10

A servant is liable for injuries resulting from his negligence to a fellow-servant.11

1 Wright v. New York Cent. R. Co., 25 N. Y. 562, 28 Barb. 80; Columbus, C., & I. C. R. Co. v. Troesch, 68 Ill. 545, 57 Ill. 155; Davis v. Detroit & M. R. Co., 20 Mich. 105; Murphy v. Iron Mountain R. Co., 10 Cent. L. J. 377; Allen v. New Gas Co., L. R. 1 Exch. Div. 251.

5 Chicago & A. R. Co. v. Shannon, 43 Ill. 338.

6 Pittsburg, Ft. W., & C. R. Co. v. Ruby, 38 Ind. 294; Baulec v. New York & H. R. Co., 59 N. Y. 356, 62 Barb. 623; Couch v. Watson Coal Co., 46 Iowa, 17; Davis v. Detroit & M. R. Co., 20 Mich.

2 Belair v. Chicago & N. W. R. Co., 43 105, 123; Chicago & A. R. Co. v. Shannon, Iowa, 662.

3 Mobile & O. R. Co. v. Thomas, 42 Ala. 672; Illinois Cent. R. Co. v. Houck, 72 Ill. 285; Toledo, W., & W. R. Co. v. Moore, 77 Ill. 217; Kansas Pacific R. Co. v. Salmon, 11 Kan. 83.

4 Gilman v. Eastern R. Co., 13 Allen, 433, 10 Allen, 232; Davis . Detroit & M. R. Co., 20 Mich. 105; Frazier v. Penn. R. Co, 38 Pa. St. 104. But see Haskin v. New York Cent. & H. R. R. Co., 65 Barb. 129.

43 Ill. 338. See Lee v. Detroit Bridge & Iron Works, 62 Mo. 565; Frazier v. Penn. R. Co., 38 Pa. St. 104.

7 Laning v. New York Cent. & H. R. R. Co., 49 N. Y. 521.

8 Couch v. Watson Coal Co., 46 Iowa,17. 9 Durgin v. Munson, 9 Allen, 396. 10 Mobile & M. R. Co. v. Clanton, 59 Ala. 392.

11 Hinds v. Harbou, 58 Ind. 121; Hinds v. Overacker, 66 Ind. 547; Griffiths v. Wolfram, 22 Minn. 185; Osborne v. Morgan, 130 Mass.

Negligence, a Question for the Jury. The question whether the company's negligence caused the injury, and whether the servant's negligence contributed to it, and whether he was chargeable with knowledge of the defect, is for the jury.1 But if there is no evidence on which a verdict for the plaintiff can be sustained, a nonsuit should be ordered;2 or the verdict, when clearly against evidence, may be set aside.3 Whether the servant receiving the injury and the servant causing it were fellowservants is for the jury, under the instructions of the court.

Pleading. — Where the gist of the action is the company's negligence in not employing competent servants, its negligence in that regard must be distinctly alleged.5

1 Laning v. New York Cent. R. Co., 49 N. Y. 521; Sammon v. New York & H. R. Co., 62 N. Y. 251; Hawley v. Northern Cent. R. Co., 17 Hun, 115, 22 A. L. J. 433, 11 N. Y. W. D. 71; Kirkpatrick v. New York Cent. & H. R. R. Co., 79 N. Y. 240; Lake Shore & M. S. R. Co. v. Fitzpatrick, 31 Ohio St. 479; Brabbits v. Chicago & N. W. R. Co., 38 Wis. 289; Bessex . Chicago & N. W. R. Co., 45 Wis. 477; Cumberland & P. R. Co. v. State, 44 Md. 283; Frandsen v. Chicago, R. I., & P. R. Co., 36 Iowa, 372; Belair v. Chicago & N. W. R. Co., 43 Iowa, 662; Kansas Pacific R. Co. v. Salmon, 14 Kan. 512, 11 Kan. 83; Snow v. Housatonic R. Co., 8 Allen, 441; Ditberner v. Chicago, M., & St. P. R. Co., 47 Wis. 138; Cottrill v. Chicago, M., & St. P. R. Co. 47 Wis. 634; Kelley v. C., M., & St. P. R. Co., 7 Northwest. Rep. 291; McMillan v. Union Press Brick Works, 6 Mo. App. 434;

Houston & G. N. R. Co. v. Randall, 50
Tex. 254; Woodley v. Metropolitan Dist.
R. Co., L. R. 2 Exch. Div. 384, 388.

2 Wright v. New York Cent. R. Co., 25 N. Y. 562, 28 Barb. 80; Warner v. Erie R. Co., 39 N. Y. 468, 475; Steffen v. Chicago & N. W. R. Co., 46 Wis. 259; Beaulieu v. Portland Co., 48 Me. 291; Baulec v. New York & H. R. Co., 59 N. Y. 356, 62 Barb. 623.

3 Columbus, C., & I. C. R. Co. v. Troesch, 68 Ill. 545, 57 Ill. 155; Toledo, W., & W. R. Co. v. Moore, 77 Ill. 217; Laning v. New York Cent. R. Co., 49 N. Y. 521.

4 Mullan v. Phil. & S. M. S. Co., 78 Pa. St. 25, 33; Hass v. Phil. & S. M. S. Co., 88 Pa. St. 269; Holton v. Daly, 4 Brad. (Ill.) 25.

60.

5 Blake v. Maine Cent. R. Co., 70 Me.

CHAPTER XIV.

INJURIES RESULTING IN DEATH.

AT common law, a right of action for a personal injury dies with the person. Actio personalis moritur cum persona. The action, if brought by him, abates with his death, and cannot be revived in the name of his personal representative. It is, however, generally provided by statute that the right of action shall survive, that the suit may be commenced or prosecuted by the personal representative, and that the amount recovered shall be a part of the assets of the estate.

No Right of Action where the Injury is instantly Fatal. If death is simultaneous with the injury, no right of action accrues which can survive. The effect of the statute is to keep alive a cause of action which belonged to the deceased; but, if his death. followed instantly the tortious act, there was no time during his life when a cause of action, capable of a survival, accrued. The length of time during which he lived after the injury is not material: it is sufficient if life continued for any period, however brief, after the injury, even without intelligence or consciousThere may, however, be a spasmodic muscular contraction of the body consistent with the extinction of life.2 The same rules of law and evidence apply to an action which survives by statute as if the injured person were alive.3

ness.

The Death of a Human Being not a Cause of Action at Common Law. It is an ancient principle of the common law, that "in a civil court the death of a human being cannot be complained of

1 Broom's Legal Maxims, pp. 904909; Whitford v. Panama R. Co., 23 N. Y. 465, 468, 476; Cregin v. Brooklyn Cross-Town R. Co., 75 N. Y. 192.

2 Kearney v. Boston & W. R. Co., 9 Cush. 108; Hollenbeck v. Berkshire R.

Co., 9 Cush. 478; Bancroft v. Boston &
W. R. Co., 11 Allen, 349.

3 Haring v. New York & E. R. Co., 13 Barb. 9; Hinckley v. Cape Cod R. Co., 120 Mass. 257.

as an injury," whether it results from the felonious assault or the carelessness of the party causing it. Therefore, in the absence of a special statute provision, an action cannot be maintained for the loss of the comfort, assistance, support, or service of a husband, father, wife, child, or other relative, against a person or corporation by whose negligence or fault the death was caused.1 The same rule prevails under the Code of Louisiana, although it provides that (article 2294) "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." The Court of Cassation, in France, has, however, interpreted the same provision (article 1382) in the Code Napoleon so as to allow a recovery of damages in such cases.2

It is

Statutes providing a Remedy for Relatives in Case of Death. a dictate of justice that persons directly interested in the life of a person wrongfully killed by another should receive from the wrong-doer compensation for the fatal injury. Statutes have therefore been enacted requiring him to compensate those who had an immediate pecuniary interest in the life of the deceased person, such as the widow, husband, parent, children, heirs, or next of kin, for their pecuniary loss, usually with a limitation as to the amount.3 The remedy is, in England and the greater

1 Baker v. Bolton, 1 Camp. 493; Higgins v. Butcher, Yelv. 89; Carey v. Berkshire R. Co., 1 Cush. 475; Kearney v. Boston & W. R. Co., 9 Cush. 108; Lucas v. New York Cent. R. Co., 21 Barb. 245; Whitford v. Panama R. Co., 23 N. Y. 465, 477; Conn. Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265; State v. Grand Trunk R. Co., 58 Me. 176; Wyatt v. Williams, 43 N. H. 102; State v. Manchester & L. R. Co., 52 N. II. 528; Hyatt . Adams, 16 Mich. 180; Long v. Morrison, 14 Ind. 595; Worley v. Cincinnati, II., & D. R. Co., 1 Handy (Cincin nati), 481; Campbell v. Rogers, 2 Handy (Cincinnati), 110; Eden v. Lexington & F. R. Co., 14 B. Monr. 204. The doctrine has been questioned in some cases. Cutting. Seabury, 1 Sprague, 522; Osborn v. Gillett, L. R. 8 Exch. 88, 93. See Ford v. Monroe, 20 Wend. 210; McGovern v. New York Cent. & H. R. R. Co., 67 N. Y. 417.

2 Hubgh v. New Orleans & C. R. Co., 6 La. An. 495; Hermann v. New Orleans

& C. R. Co., 11 La. An. 5; Earhart v. New Orleans & C. R. Co., 17 La. An. 243.

3 The following is the provision of the English "Act (known as Lord Campbell's Act) for compensating the families of persons killed by accidents." (August 26, 1846, 9 & 10 Victoria, c. 93.) "That 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 amount in law to felony.