Mulchey v. Washburn Car-wheel Co.

• Decision Date: 23 November 1887
• Citation: 145 Mass. 281,14 N.E. 106
• Parties: MULCHEY v. WASHBURN CAR-WHEEL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 281

14 N.E. 106

MULCHEY v. WASHBURN CAR-WHEEL CO.

Supreme Judicial Court of Massachusetts, Worcester.

November 23, 1887

COUNSEL

W.S.B. Hopkins, for plaintiff.

The doctrine which the court below held applicable in this case is thus expressed: "It is impossible to tell from the evidence how the intestate fell from the cars, what he was doing at the time, whether his death was instantaneous, or whether he endured any conscious suffering before his death. These questions are left to conjecture. The evidence would not justify the jury in finding that the plaintiff had sustained the burden of proof which was upon her as to these points." Corcoran v. Railroad Co., 133 Mass. 507. Another case occurred indicating death from suffocation in a mass of grain by which he was covered in the falling of a mill. See Nourse v Packard, 138 Mass. 307. Which of these cases does the case at bar more nearly resemble? It is to be taken, as established by the verdict beyond question, that the death was not instantaneous. The ruling under consideration involves only the question whether he suffered consciously when injured. Surely it was not a question for the court, but for the jury, whether a man so injured suffered consciously. A blow which disrupts the abdomen may, under some circumstances, produce instantaneous death; but this case proves that it is not always true,--that it is not a necessary result of such a disruption. The rulings of the judge are inconsistent with each other. It yet remains for this court to decide that a person who is fatally injured and lives an hour, has no cause of action for the injury to him, because forsooth he has fainted away, and dies happily insensible, although his frame may be in torture. If it be said that the plaintiff was not injured by the alleged inconsistency in the rulings of the court, it is to be answered that, if the rulings are inconsistent, they show that the court below misapprehended the use of the term "conscious suffering," and its application to this class of cases by this court in its former opinion.

F.P Goulding, for defendant.

Viewed most favorably for the plaintiff, the evidence fails to prove that her intestate suffered any conscious physical pain or mental distress in consequence of the accident. It being necessary for the plaintiff to prove that her intestate endured suffering, the ruling was correct upon the question of damages. Kennedy v. Sugar Refinery, 125 Mass. 90; Moran v. Hollings, Id. 93; Corcoran v. Railroad Co., 133 Mass. 507; Tully v. Railroad Co., 134 Mass. 499; Riley v. Railroad Co., 135 Mass. 292. If it can be said that this evidence does not exclude the possibility of brief conscious suffering on the part of the deceased, it still falls far short of the necessary proof. A state of evidence that is equally consistent with two contradicting conclusions of fact tends to prove neither of them. There is no presumption that a person whose body is crushed by a falling mass of iron or steel, and who is found five or ten minutes after, exhibiting no signs of consciousness, but gasping, and in his death struggle, was ever conscious after he was injured. Consciousness may be inferred from a state of health and wakefulness. It may be proved by signs indicating it. It may be proved by evidence of experts, who, from examination of the body, may state the cause of death, and whether such a cause would leave the victim in possession of consciousness for the time after the injury and before death. Nourse v. Packard, 138 Mass. 307. The case at bar is not distinguishable in the plaintiff's favor from Corcoran v. Railroad Co., ubi supra. In this case the attempt to draw an inference could only result in a mere conjecture. Tully v. Railroad Co., ubi supra.

OPINION

DEVENS J.

As the report of the presiding judge deals only with the question of damages, the evidence tending to make a case of negligence on the part of defendant, and to show that an action therefor accrued to the deceased in his life-time, is not stated. It is assumed by the report that it would be sufficient to sustain a verdict.

The plaintiff was justified in contending, upon the evidence that the body of the deceased was not found until some 10 minutes after the accident; that although then unconscious he was still alive, and, therefore, that his death was not instantaneous. The ruling of the presiding judge was in accordance with this contention, but he further ruled that there was no evidence of conscious suffering by the deceased, and, therefore, that the plaintiff was entitled only to nominal damages. There was no evidence of any...