Imágenes de páginas

It bad full actual knowledge that the butter the carrier in the selection of bis vehicles to was to be, and would be, carried through to provide himself with those of the most apNew Orleans without change, and in the map- proved modes of construction and such conner in which it was actually forwarded, and trivances as are in approved use for the preimpliedly so directed avd consented on behalf vention of loss or damage to the goods he unof plaintiffs.

dertakes to carry. Marquette, H. & 0. R. Co. v. Kirkwood. 45 Boscowitz v. Adama Exp. Co. 93 III, 523, 34 Micb. 54; Patten v. Union Pac. R. Co. 29 Fed. Am. Rep. 191; Steinurg v. Erie R. Co. 43 N. Rep. 592 ; Snow v. Indiana, B. & W. R. Co. Y. 127. " See also Hutchinson, Carr. $ 294. 109 lod. 422.

The habit of a single railroad company does Wetzell v. Chicago & Alton R. Co. 12 Mo. not constitute a legal custom of any character. App. 599, is directly in point, and decisive Lawson, Usages and Customs, p. 41; Detroit against plaintiffs in this action.

& M. R. Co. v. Van Steinburg, 17 Mich. 99. The damage to this butter was caused by the If the “establislied and customary mode" ordinary action of the weather, and its own in- defendant bad of doing business with the St. herent tendency to damage by heat, for which Louis, Alton & Terre Haute Railway Company the owner, and not the carrier is responsible. was negligent, it was no excuse in any event.

Nelson v. Woodruff, 66 U. S. 1 Black, 156 Ilamilton v. Des Moines M. V. R. Co. 36 (17 L. ed. 97); Warden v. Greer, 6 Watts, 424; Iowa, 37; Tosic v. Chicago, R. 1. & P. R. Co. Story, Bailm. par. 492 a, and cases; Lawson, 75 Iowa, 683; Allen v.Burlington, C. R. & N. R. Carr. p. 15, par. 14; 2 Am. & Eng. Encyclop. Co. 64 Iowa, 94; Cole v. Goodwin, 19 Wend. L. p. 853 (7).

251; Lawson, Usages and Customs, p. 137; Plaintiffs bad the burden of showing that the Sumner v. Southern R. Asso. 7 Baxt. 345, 9 Am. butter was in good condition when it came into & Eng. R. R. Cas. 18. defendant's possession.

The presumption is that goods transported Marquette, H. &0. R. Co. v. Langton, 32 by several successive carriers came into possesMich. 251; Marquette, H. &0. R. Co. v. Kirk- sion of the last carrier in the same order and wood, supra; Naugatuck R. R. Co. v. Beards- condition in which tbey were delivered to the ley Scythe Co. 33 Conn. 218.

first carrier, there being no direct evidence to Messrs. Rickel & Crocker, for appellees: the contrary.

Failure to open the seals, thereby failing to Shriver v. Sioux City & St. P. R. Co. 24 Minn, acquire any information that defendant might 506, 31 Am. Rep. 355; Leo v. St. Paul, M. & M. have acquired by doing so, was negligence. R. Co. 30 Minn. 438; Laughlin v. Chicago & N.

Dixon v. Richmond & D. R. Co. 74 N. C. W. R. Co. 28 Wis. 204; Smith v. Nero York 638, 13 Am. R. R. Rep. 99.

Cent. R. Co. 43 Barb. 225; Dixon v. Kichmond Having accepted the goods the carrier can.& D. R. Co. 74 N. C. 538, 13 Am. R. R. Rep. not escape liability by claiming that he had not 99; Hutchinson, Carr. 761; 2 Am. & Eng. the means at hand at time of acceptance with Encyclop. L. p. 783; Brintall v. Saratoga & which to safely forward them.

W. R. Co. 32 Vt. 665. 2 Am. & Eng. Encyp. L. p. 788: Hannibal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262 (20 Beck, J., delivered the opinion of the court: L. ed. 423); Helliwell v. Grand Trunk R. Co. of 1. The plaintiff delivered to the Burlington, Canada, 7 Fed. Rep. 76.

Cedar Rapids & Northern Railway Company, A railroad company by the very act of ac- at West Union, in iwo consigoments, a large cepting goods for transportation thereby enters quantity butter for transportation to New into an implied undertaking to furnish such Orleans. The facts as to both separate concars and exercise such diligence as may be nec-signments are identical. In the furiber stateessary for their safe transportation.

ment of facts they will be referred to as but Merchants Dispatch Transp. Co. v. Cornforth, one transaction. The butter was put in re3 Colo. 280, 25 Am. Rep. 759; Wing v. Nero frigerator cars by the company first receiving York & E. R. Co. 1 Hilt. (N. Y.) 241; 2 Wood, it, and was transported therein over connecting Railway Law, p. 1582, SS 429, 430; Ogdensburg roads to St. Louis, where it was transferred by R. Co. v. Pratt, 89 U. S. 22 Wall. 123 (22 L. ed. drays across ibe river, and delivered to the Si. 827); Harkins y. Great Western R. Co. 17 Louis, Alton & Terre Haute Railway Company, Mich. 62, 18 Mich. 427; Sager v. Portsmouth, known as the “Cairo Short-Line,” and put in S. & P. & E. R. Co, 31 Me. 235.

a common box car, and a lined fruit car, each If the carrier is informed that the goods are of which was sealed, as is usually done, and perishable, or should know it from the nature sent on the same day to Duquoid, III., and deof the goods, the carrier is bound to use all livered to defendant, which transported it 10 reasonable precautions and means to prevent New Orleans in the same cars. The butter loss.

was not examined by defendant, and no attempt 2 Parsons, Cont.5th ed. p. 162; Hastings v. was made to ascertain its condition, on the Pepper, 11 Pick. 41; Sager v. Portsmouth, 8. & probability that it could or would not be trans. P. & E. R. Co. 31 Me. 228; Faukins v. Great ported in ibe cars, without injury, to New OrWestern R. Co., Merchants Dispatch Transp. leans. The Cairo Short-Line Company billed Co. v. Cornforth and Wing v. New York & E. the butter to New Orleans at a rate of freight R, Co. supra.

charged for common cars. It appears that When property is perishable the law imposes the consignment took the usual course of transa duty of the carrier to use diligence to action between defendant and the Cairo Suortguard it.

Line, at Duquoin. It is not shown that plain. llevett v. Chicago, B. & 2. R. Co. 63 Iowa, tiff, the initial or connecting carrier, made any 611,

demand of defendant or the Cairo Sbort-Line It is a part of the common-law liability of Company for a refrigerator cai, or for the protection of the butter from the effects of heat | ter. These views are supported by the followby the use of ice in the common car in which ing, among other cases: Hewett v. Chicago, B. it was transported, and it is not shown that & Q. R. Co. 63 Iowa, 611; Sager v. Portsmouth, lilaintiff, or the initial carrier, or the connect. St. P. & E R. Co. 31 Me. 228; Hawkins v. iog companies to St. Louis, bad any notice or Great Western R. Co. 17 Mich. 62; Great Westinformation in any way, directly or indirectly, ern R. Co. v. Harkins, 18 Mich. 427; Ogdensof the shipment of the butter without protec- burg R. Co. v. Pratt, 89 U. S. 22 Wall. 123 [22 tion from the effects of the heat, nor did they L. ed. 827]; Wing v. New York & E. R. Co. 1 have any notice or information of the practice Hilt. (N. Y.) 241; Merchants Dispatch Transp. .and course of business adopted by defendant Co. v. Cornforth, 3 Colo, 280. and the Cairo Short-Line at Duquoin. We are As to the duty of defendant to use cars so required to determine whether, under the law constructed and used as to avoid injury from upon these facts, the defendant is liable. The heat, see Hutch. Carr. & 294; Boscovitz v. Ad. discussion of this question will dispose of cer- am8 Exp. Co. 93 Ill. 525; Steinweg v. Erie R. tain objections made by the counsel of defend Co. 43 N. Y. 123. ant to the rulings of the court below upon in- 3. But it is said (1) that defendant did not structions and admissions of evidence. have refrigerator cars which it could have used

2. We will proceed to inquire as to the duty on the day it received the butter; (2) that the of defendant upon receiving the buiter in a car cars were sealed; (3) that it was accustomed to from the Cairo Short-Line for transportation baul the cars received from the Cairo Shortto New Orleans, without directions or instruc- Live without changing the cargo. We may tions as to the character of the car in which it here assume that defendant will be excused should be carried. A carrier's duty is not lim- from using refrigerator cars. But it is shown ited to the transportation of goods delivered for that the butter could have been carried safely carriage. He must exercise such diligence as by the use of ice in the box cars. It was de is required by law to protect the goods from fendant's duty to use it. But, having accepted destruction and injury resulting from condi- tbe butter for transportation, defendant cannot tions which, in the exercise of due care, may escape liability for not safely transporting it, be averted or counteracted. He must guard on the ground that it did not have cars suffithe goods from destruction or injury by the cient for that purpose. Hannibal & St. J. R. elements; from the effects of delays; indeed, Co. v. Srift, 79 U. S. 12 Wall, 262 [20 L. ed. from every source of injury which he may 423); Hellivell v. Grand Trunk R. Co. 7 Fed. avert, and which, in the exercise of care and Rep. 76; Paramore v. Western R. Co. 53 Ga. ordinary intelligence, may be known or antici- 385. pated. Unknown causes, or those which are The sealing of the car was not to protect it inherent in the nature of goods, and cannot be, from defendant, the carrier having it under in the exercise of diligence, averted, will not control. Surely, if it was necessary for the render the carrier liable. The nature of the protection of the goods, defendant had full goods must be considered in determining the power to enter the car, and failure to exercise carrier's duty. Some metals may be transport- ibe power was negligence, Dixon v. Richmond ed in open cars. Many articles of commerce, & D. R. Co. 74 N. Č.538. when transported, must be protected from rain, The custom of the defendant and Cairo sunshine and heat, and must have cars fitted Short-Line cannot be invoked to protect one or for their safe transportation. Live animals both from negligence causing destruction to must have food and water, when the distance goods transported by them. A custom to take of transportation demands it. Fruit, and some cars without changing the goods in them other perishable articles, must be carried with when their safety demanded it would be a cusexpedition and protection from frost. So the top based upon negligence, and cannot be recarrier must attend to the cbaracter of the garded or enforced. Hamilton v. Des Moines goods he transports. He is informed thereof Valley R. Co. 36 Iowa, 31; Allen v. Burlington by inspection of the freight bills, or by other C. R. & N. R. Co. 64 Iowa, 95. papers accompanying the shipment.

4. It is said that the rate of charges, as shown In the case before us the marks on the pack- by the way.bill, was for common cars, and the age and the way-bill disclosed that the sub- defendant, therefore, undertook to furnish no ject of shipment was butter. The employés of other kind. If the freight charges fixed in the defendant were endowed with intelligence way-bill do not express a contract that the butwhich taught them that the season was sum. ter may be transported so as to destroy its mer, when warm weather prevailed; that butter value, and that the carrier is excused from the in common cars would be greatly injured by exercise of the care required of him by law, the ordinary heat of the climate; and that the we think the freight charges in no case will butter, as it approached its destination, would limit the care to be exercised by the carrier, be subject, by reason of the change of latitude, and restrict bis liability. The defendant was to greatly increased beat from the weather. not restricted, by the rate of freight charges All these things are familiarly known to all named in the way-bill, from claiming and enmen. Surely, the law will presume that de- forcing the payment of a just compensation fendant's employés bad full knowledge there for charges incurred on account of outlays of. The law required the defendant, having made in order to safely transport the goods. received the perishable cargo involved in this Sumner v. Southern R. A£80, 7 Baxt. 345. suit, to exercise the care and diligence neces. Many of the rulings of the district court upon sary to protect it; and if improved cars for the the admission of evidence and instructions, obtransportation of articles of commerce liable to jected to by defendant, are in accord with the injury from beat were in use, it was defend- views we bave expressed. ant's duty to use such cars in carrying the but- 5. Evidence was admitted, against defcnd. ant's objection, tending to show that a custom rests on such carrier to show that they were prevailed among carriers by railroads to put not in good condition when received by him. butter into cold storage, when refrigerator cars Hutch. Carr. § 761; Shriver v. Siour City & were not ready to receive it. This evidence St. P. R. Co. 24 Minn. 506; Leo v. St. Paul, was objected to on the ground that the peti- M. & M. R. Co. 30 Minn. 438; Laughlin v. Chition contained no allegation of negligence by cago & N. W. R. Co. 28 Wis. 204; Dixon v. reason of the failure of defendant to put the but- Richmond R. Co. 74 N. C. 538; Paramore v. ter into cold storage. But the petition does Grand Trunk R. Co. 53 Ga. 385. charge negligence on the part of the defendant 7. The defendant, in its answer, set up as a de in not taking proper precautions to preserve fense that plaintiffs had fully compromised the butter. The evidence tends to show what this claim for loss of the butter with preceding precautions ought to have been taken in this connecting carriers, transporting the butter case. Besides, the evidence serves to show that to defendant. The court withdrew the issue defendant's excuse for sending the butter in upon this defense from the jury, on the ground the common car, and for not retaining it until that there was no evidence supporting the dea refrigerator car on defendant's road came fense. Of this ruling the defendant now com. along, is not sufficient. It is shown that such plains. The court, we think, ruled rightly. a car was run on defendant's trains on two or The evidence totally fails to show a settlement. three days each week.

The most that could be said is that the evi. 6. Tbe superior court, in the seventh instruc- dence shows propositions for settlements, and tion given, directed the jury that they could agreements to settle. But it is not shown, as infer that the butter was in good order when is alleged in defendant's answer, that there received by defendant, from the fact that it was in fact a settlement and payment thereon, was shipped in good condition, in a refrigera- and a discharge of the claim. The action of tor car, for St. Louis. Of this instruction de the court in this regard is correct. The fore. fendant complains. It is correct. The pre- going discussion disposes of all the questions sumption arises that goods shipped in good requiring consideration in this opinion. order continue in that condition when in the The judgment of the District Court is af. bands of a connecting carrier. The burden | firmed.


John M. DAVIS, Admr., etc., of Clarence during the period between the injury and the Davis, Deceased, Appt.,

death, and cannot embrace those accruing after

the death occurred. 0. ST. LOUIS, IRON MOUNTAIN &

4. An employe does not, by entering the

service, assume a risk of danger incident SOUTHERN R. CO.,

thereto, wbich by reason of his youth and inex.

perience he does not know or appreciate, and to AND Two OTHER CASES.

which the employer exposes him without warning

him of it. (.... Ark.....)

5. Whether or not a youth employed in

coupling cars bad, or ought to have bad, knowl. 1. The Act of 1883 (Mansf. Dig. 88 5225, 5226) edge or appreciation of the danger incident to the embodying the provisions of Lord Campbell's Act use of guard rails with no blocking between them in regard to suits to recover damages for death and the main rails is a question for the jury. resulting from the wrongful act, neglect or de 6. Although it is the duty of counsel to fault of another, applies to all cases in which a present their prayers for instructions to the recovery may be had under that Act regardless of court, the court should embody no more than the the agency by which the injury was inflicted, and substance of them in the charge, and should not supersedes the Act of 1875 relating to suits for in- give them in extenso as requested, to the jury. juries by railway trains; hence such suits must be brought by the personal representative for the

(April 6, 1890.) benefit of the widow and next of kin. 2. That Act does not take away the APPEALS from judgments of the Circuit right which survives to the personal repre

Court for White County in actions to resentative by 8 52:23, Mansf. Dig., to recover upon cover damages alleged to have accrued from a the cause of action for the injuries which accrued death due to defendant's negligence. Reversed. by the common law to the injured party in his

The facts are fully stated in the opinion. lifetime; nor does it deprive a father of his right Messrs. Sanders & Watkins, for appelto maintain his common-law action for loss of lant: services of his minor child. Therefore in the case The first cause of action was based upon of the death of a minor the three actions may be $ 5223, Mansf. Dig., and is simply the cause of prosecuted at the same time and recoveries had in action which accrued to the deceased by reason each and all of them.

of the injury, and covered only the period from 8. In an action by a father to recover the injury to the death of the injured party.

for the loss of services of his minor child by The Act providing for this cause of action has reason of injuries inflicted upon him by a third

not been repealed. person, which result in his death, the recovery must be limited to the damages which accrued

Ward v. Blackwood, 41 Ark, 295.

A youth of iminature years, inexperienced, NOTE.—See also Ciriack v. Merchants Woolen Co. and naturally and necessarily incapable of un(Mass.) 6 L. R. A, 733.

derstanding and appreciating the dangers and risks incident to the service such as he was for the benefit of the next of kin. The third is. called on in this case to engage in, does not an action by the father of the minor to recover waive or assume the unknown bazards incident for the loss of his son's services during his to his employment.

minority. Jones v. Forence Min. Co. 06 Wis. 277; San- The question presented at the threshold of born v. Madera Flume Co. 70 Cal. 261; Russell the cases is, Who can maintain action against v. Minneapolis & St. L. R. Co. 32 Minn. 233; a railroad for an actionable injury resulting in Cook v. St. Paul, M. & M. R. Co. 34 Minn, 45, the death of a minor? 32 Alb. L. J. 319; Smith v. Penninsular Car The answer involves a consideration of the Works Co. 60 Mich. 502; Huhn v. Missouri Pac. common law and the statutes on this subject. R. Co. 10 West. Rep. 405, 92 Mo. 440, 31 Am. The cause of action which accrued to tbe in& Eng. R. R. Cas. 221; Hulehanv. Green Bay, jured party by the common law survives to his W. & St. P. R. Co. 68 Wis. 520; Colbert v: administrator after his death by virtue of a proRankin, 72 Cal. 197; Kane v. Northern Cent. vision of the Revised Statules of 1838, wbicb R. Co. 128 U. S. 91 (32 L. ed. 339); Franklin v. is carried into Mansfield's Digest as secWinona & St. P. R. Co. 37 Mion. 409; Snow v. tion 5223. Housatonic R. Co. 8 Allen, 441; Coombs v. Nero The third section of the Act of February 3, Bedford (ordage Co. 102 Mass. 572; Sullivan v. 1875, prescribed that when a wife was killed India Mfg. Co. 113 Mass. 396; Grizzle v. Frost, by a railway train, the husband should sue; 8 Fost. & F. 622; Gilman v. Eastern R. Co. 13 when a minor was killed, the father, mother or Allen, 433; Union Pac. R. Co. v. Fort, 84 U. S. guardian should sue; in all other cases the suit 17 Wall. 553 (21 L. ed. 739); Parkhurst v. was to be by the legal representative. Acts Johnson, 50 Mich. 70; 3 Wood, Railways, note 1875, p. 133. 2, p. 1483;_2 Thompson, Neg. 977; Little Rock, The Act applied only to injuries by the trains M. R. & T. R. Co. v. Levereit, 48 Ark. 333. of railways.

Messrs. Dodge & Johnson, for appellee: In 1883 another Act upon the subject was

Section 5223 of Mansfield's Digest was re- passed, embodying in this particular the propealed by sections 5225 and 5226.

visions of the English Statute of 9 and 10 Little Rock & H. S. R. Co. v. Townsend, 41 Victoria, known as Lord Campbell's Act. Ark. 388.

Mansf. Dig. $$ 5225, 5226. An administrator has no legal capacity under It contains po express repeal of either of the the laws of Arkansas to sue for the death of a other provisions, and it is argued that as the mipor, for the reason that under section 3 of the Act of 1875 is a special Act relating only to Act of February 3, 1875, that right devolved railways, none of its provisions are abrogated upon, and survived alone to the father, who by the subsequent General Act, but, unless it was living at the time of the institution of the supersedes the Act of 1875 in so far as it affectsaction,

this inquiry, the law is left in an anomalous See Lehigh_Iron Co. v. Rupp, 100 Pa. 95, 7 condition. It would stand thus: If an acAm. & Eng. R. R. Cas. 25; Litchfield Coal Co. tionable injury resulting in death should ocv. Taylor, 81 Ill. 590; St. Louis, I. M. & S. R. cur by an agency other than the trains of a railCo. v. Yocum, 34 Ark. 493; Acts 1875, p. 133. way, the widow and next of kin would enjoy

A suit by the father for such wrongful or the benefit of damages recovered therefor unnegligent act bars all other actions, whether in- der the last Act; but if the injury was inflicted stiiuted by an administrator or other legal rep. by the trains of a railway, the recovery would resentative.

be solely for the benefit of the estate, because the Sheldon, Subr. $ 230; Houston & T. C. R. Co. last Act would not apply in such cases. Little V. Moore, 49 Tex. 31; Sibley v. Ratliffe, 50 Ark. Rock & Ft. 8. R. Co. v. Townsend, 41 Ark. 382. 477.

Again, a mother dependent upon her adult The knowledge of the employé, of the char- son for support could recover nothing for a acter of the guard rail, and his election to work culpable injury to him by the trains of a railwith it in the condition in which it was con- way resulting in death, but could recover if the structed, bars all right of recovery for injuries injury was inflicted by a natural person, a resulting therefrom, for the reason that he as- street railway or other corporation, or perbaps. sumes the risk as one of the usual hazards of by a steam railway by otber means than the employment.

through its trains. We cannot attribute an inWood v. Locke, 147 Mass. 605; Pingree v. Ley- tention to the Legislature to work out such a land, 135 Mass. 398; Moulton v. Gaga, 138 Mass. result. As if to dispel all doubt as to the in290; Leary v. Boston & A. R. Co. 139 Mass. 580; tent to extend the benefits of ihe last Act to the Taylor v. Carero Mfg. Co. 140 Mass. 150; Rains widow and next of kin of the deceased in all v. St. Louis, 1. M. & S.R. Co. 71 Mo. 164, 5 Am. classes of cases, the Act declares that it shall & Eng. R. R. Cas. 610; Crutchfield v. Richmond apply in every case where "the person who, or & D. R. Co. 78 N. C. 300; Piquegno v. Chicago the company or corporation which,” is liable & G. 7. R.Co. 52 Mich. 40, 12 Am. & Eng. R. for the injury, is sued. The reasonable conR. Cas. 210; Batterson v, Chicago & G. T. R. struction of the Act is that it applies to all Co. 49 Mich. 184.

cases in which a recovery may be had regård

less of the agency by wbich the injury was inCockrill, Ch. J., delivered the opinion of flicted. Such has been the accepted constructhe court:

tion of the Act by bench and bar without an These appeals involve three suits brought express ruling on the point. See Fordyce v. against the railway on account of an injury to McCants, 51 Ark. 509; Little Rock & Ft. 8. R. a minor resulting in his death. Two are by Co. v. Townsend, supra. the personal representative of the minor-one The question then is, Wbat is the effect of of them for the benefit of bis estate, the other this Statute (Mansf. Dig: SS 5225, 5226) upon thegeneral provision (Id. 5223) regulating the sur- | upon the fatber for the loss of services prior to vival of actionable wrongs to the administrator the minor child's death, nor was it intended to or executor of the injured person? We are not deprive him of any right. Its object was to enwithout authority upon the question. The Eng. able bim, through the personal representative, lish rule which is commonly followed by the to recover the value of the services of which he courts of the States whose statutes embody the is deprived, just as he recovers for any other provisions of Lord Campbell's Act is that the pecuniary loss which he sustaios by the death. right of action given by the latter Statute to But where the injury resulted in death, the the personal representative of one whose death father's right of recovery by the common law bas been caused by the default of another is was limited to the interim between the disab. created by the Statute, and is not a continua- ling injury to the child and its death. His tion of the right of action which the deceased right of recovery was restricted to the value of had in bis lifetime, although the new right, it the minor's services and the cost of medical at. has been ruled, arises only by preserving the tendance and nursing to the time of death. cause of action wbich was in the deceased. If The right fell with the life of the minor. This the deceased never bad a cause of action none was upon the theory that no civil action would accrues to his representative or next of kin. lie for a right springing from the death of a The right which accrued to the deceased re. human being. The application of the rule to vives to his administrator by virtue of the for- a case like this has been ably contested and demer Statute (Mansf. Dig. $ 5223); the newly pied (see opinion by Judge Dillon in Sullivan created right results from an accrual on the v. Union Pac. R. Co. 3 Dill. 334), but the ques. death of the injured party. Both actions are tion is not an open one upon authority. Litlle prosecuted in the name of the personal repre- Rock & Ft. 8. R. Co. v. Barker, 33 Ark. 350; sentative where there is one, and may proceed Little Rock & Ft. 8. R. Co. v. Touonsend, pari passu without a recovery in the one hav- supra; Mobile L. Ins. Co. v. Brame, 95 U. S. ing the effect of barring a recovery in the other, 754 [24 L. ed. 580]; The Harrisburg, 119 U. 8. because the suits are prosecuted in different 199 (30 L. ed. 358); Cooley, Torts, $ 262. rights and the damages are given upon different It follows from these views that the court principles to compensate different injuries. erred in dismissing the action prosecuted by One is for the loss sustained by the estate and the administrator for the benefit of the estate; for the suffering from the personal injury in and also in permitting the plaintiff in bis suit the lifetime of the decedent, the recovery in as parent to recover the value of his minor son's which goes to the benefit of the decedent's services after the latter's death. Damages accreditors, if there are any; the other takes no cruing from that cause could be recovered only account of the wrongs done to the decedent, in the suit by the administrator, prosecuted for but is for the pecuniary loss to the next of kin, the benefit of the father as next of kin. In occasioned by the death alone. The death is that suit the verdict was for the railway comthe end of the period of recovery in one case pany and we are asked to reverse it upon the and the beginning in the other. In one case ground that the court's charge to the jury is the administrator sues as legal representative erroneous. of the estate, sor what belonged to tbe deceased; While the plaintiff's intestate, who was a in tbe other he acts as trustee for those upon youth eighteen years old and of limited expewbom the Act confers the right of recovery for rience in railway matters, was in the discharge the pecuniary loss inflicted upon them. Blake of his duty in uncoupling the cars of one of the V. Midland Å. Co. 18 Q. B. 93; Pym v. Great defendant's trains in its yard at Knoble where Northern R. Co. 2 Best & S. 759; Barnett v. he was employed, his foot caught in a space beLucas, 6 Ir. Rep. C. L. 247: Needham v. Grand tween the guard and main rails of the track,

Trunk R. Co. 38 Vt. 294; Ansonia B. & C. Co. and he was injured by the moving train. The V. Babbitt, 74 N. Y. 395; Littlewood v. Nero testimony was conflicting upon the question York, 89 N. Y. 24; Vicksburg & M. R. Co. v. whetber a block in the space wbere the boy's Phillips, 64 Miss. 693; Ilulvert v. Topeka, 34 foot was caught could be used so as to lessen Fed. Rep. 510; Fordyce v. McCants, supra. the bazard of the employé without enbancing

The statutes under wbich the two actions are the danger of derailing the trains. brougbt do not therefore cover the same The question for the jury's consideration was ground; there is no repugnancy between them, not whether the railway company was guilty and the latter does not impair the right con of negligence in failing to block ihe space beferred by the former. Needl am v. Grand tween the main and guard rails, because even

Trunk R. Co. supra; Com. v. Metropolitan R. if the failure to do that could upon the evidence Co. 107 Mass. 236.

adduced be found to constitute negligence (as We are aware that the cases are not barmo- to which see Chicago, R. 1. & P. R. Co. v. Lo. nious to this effect. The conflicting arrays are nergan, 118 III. 45, 6 West. Rep. 59; Rush v. maishaled in an elaborate article on the subject Missouri Pac. R. Co. 36 Kan. 129, 28 Am. & in 37 Am. Law Reg. pp. 385, 513. But the Eng. R. R. Cas. 488 and note; Mayes v. Chicage position assumed above is, as we conceive, sus. R. I. & P. R. Co. 63 Iowa, 562; Huhn v. Mistained by principle and the weight of authority. souri Pac. R. Co. 10 West. Rep. 405, 92 Mo.

The same reasons which prevent the right 440, 31 Am. & Eng. R. R. Cas. 221), the proof given by the Statute to the next of kin from shows that the deceased continued in the serve being exclusive of that wbich accrued to the ice after he knew, or, what is the same thing, decedent and survived to bis administrator pre- bad full opportunity to know, that the rails serve the right of the father to maintain bis were unblocked. Little Rock, M. R. & T. R. common-law action agajost the railway for the Co. v. Lererett, 48 Ark. 333. deprivation of bis minor child's services.

But service about the unblocked rails was atThe Statute confers no right of recovery tended with danger, and the knowledge of the

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