St. Louis, I. M. & S. Ry. Co. v. Dawson

• Decision Date: 10 March 1900
• Citation: 56 S.W. 46
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. DAWSON.
• Court: Arkansas Supreme Court

56 S.W. 46

ST. LOUIS, I. M. & S. RY. CO. v. DAWSON.

Supreme Court of Arkansas.

March 10, 1900.

Appeal from circuit court, Woodruff county; Hance N. Hutton, Judge.

Action by M. L. Dawson, administrator, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

On the 9th day of June, 1896, Marie Dawson, the daughter of plaintiff, M. L. Dawson, while crossing the railway track of the St. Louis, Iron Mountain & Southern Railway Company at Hayne's station, was struck by a locomotive, run over, and killed. She was between 6 and 7 years of age, and had started on a visit to some companions who lived in the portion of the town across the railway from her home. She was seen on the track a short distance in front of the engine, but no witness saw her at the time she was struck. After the train passed over her, she was discovered lying on the track. She had been pushed along the track, and looked like a bundle of rags. One of her legs was cut off above the knee, and a portion of the entrails protruded. One witness testified that, with these exceptions, the body was not much mutilated, though he said the skull was broken. Those who reached her first testified that she did not move, and did not appear to be conscious, though she was seen to breathe. "Some one called her, `Marie, Marie,' but she never spoke. She gave a couple of gasps, and in a moment or so was dead." This action was brought by the plaintiff, as administrator of the estate of Marie Dawson. There were two causes of action set up in separate paragraphs of the complaint. One sought a recovery in behalf of her estate for the pain and suffering caused her by the injury. The second paragraph sought a recovery in behalf of plaintiff, and for his use and benefit, as her father and next of kin. The jury found in favor of plaintiff, and assessed the damages on the first count, for pain and suffering, at $4,000, and at $500 on the second count. The railway company appealed.

Dodge & Johnson, for appellant. McCulloch & McCulloch, for appellee.

RIDDICK, J. (after stating the facts).

We think the evidence sufficient to support the finding of the jury that the employés of the company in charge of the train were guilty of negligence causing the death of plaintiff's child. We are also of the opinion that a right of action survived to the personal representative; for the survival of the action depends upon whether the injured child lived after the act constituting the cause of action, and it is not material whether she was conscious or not. If she lived after her right of action was complete, this right, which she possessed, passed, by virtue of the statute, to her personal representative. Davis v. Railway, 53 Ark. 127, 13 S. W. 801, 7 L. R. A. 283; Hollenbeck v. Railroad Co., 9 Cush. 478; Mulchahey v. Car-Wheel Co., 145 Mass. 281, 14 N. E. 106. But when the administrator sues, for the benefit of the estate, to recover for the pain and suffering endured by the deceased, the period for which damages can be assessed ends with the life of the deceased. Davis v. Railway, 53 Ark. 127, 13 S. W. 801, 7 L. R. A. 283. The administrator can recover only such an amount as the deceased might have recovered had she been miraculously restored to life and health at the moment of her death. The burden of proof is on plaintiff to show that the deceased, as a result of the injury, underwent conscious pain and suffering. The cases, with few exceptions, hold that, for injury causing instantaneous death, no recovery can be had for pain and suffering. And the same rule is applied when, though life remains a few moments, unconsciousness instantly follows the injury; for in such a case no conscious suffering is shown. Some of the cases go further, and hold that, although a moment's interval of conscious suffering be proved, if this be a mere incident to the death, no recovery can be had for pain and suffering. This question was considered in the case of The Corsair (decided by the supreme court of the United States in 1891) 12 Sup. Ct. 949, 36 L. Ed. 727. In that case the person for whose pain and suffering damages were sought was a passenger on the tug Corsair, which was negligently run against the bank of the Mississippi river, and sunk in about 10 minutes after the collision. It was contended in that case that the deceased suffered great mental and physical pain and shock, and endured the tortures and agonies of death. "But," said the court, "there is no averment from which we can gather that these pains and sufferings were not substantially contemporaneous with her death, and inseparable, as a matter of law, from it. Had she suffered bodily wounds and bruises from the result, of which she lingered and ultimately died, it is possible that her sufferings during her illness would give a separate cause of action; but the very fact that she died by drowning indicates that her sufferings must have been brief, and, in law, a mere incident to her death. Her fright for a few minutes is too unsubstantial a basis for a separate estimation of damages." Kennedy v. Sugar Refinery, 125 Mass. 90; Moran v. Hollings, 125 Mass. 93; note to Brown v. Railway Co. (Tenn. Sup.) 70 Am. St. Rep. 667 (s. c. 47 S. W. 415). There are, however, cases seemingly in conflict with this decision. The supreme court of New Hampshire, in a case where damages were sought for death occasioned by drowning, held that the circumstances, showing death by drowning in muddy, stagnant, and slimy water, were such that "the jury might legitimately infer, not only that the death was not instantaneous, but that it was attended with both physical and mental pain and suffering." Clark v. Manchester, 64 N. H. 471, 13 Atl. 867. Of course, these cases turn to some extent, upon the statute giving the right of action; for at common law there was no right of action for injuries causing death. By a strange fiction, the extremity of the wrong precluded the redress. Goodsell v. Railroad Co., 33 Conn. 55. But, whichever view we should adopt as to death by drowning, or when some brief interval of conscious suffering before death was shown, we...