McKay v. Syracuse Rapid Transit Railway Co.

Miller, J. This action is brought under section 1902 of" the Code of Civil Procedure for the negligent killing of the plaintiff’s intestate, his wife, and the question is fairly presented whether in such an action the plaintiff may recover in case the sole beneficiary, in this case the plaintiff, was himself guilty of negligence which contributed to cause the death of the decedent. The Appellate "Divisions in the third and fourth departments have taken opposite views of the question. (Lewin v. Lehigh Valley Railroad Company, 52 App. Div. 69; O’Shea v. Lehigh Valley Railroad Company, 79 App. Div. 254.) The material part of said section reads: “The executor or administrator of a decedent who has left him or her surviving a husband, wife, or next of kin, "may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was caused, against a natural person who, dr a corporation which, would have, been liable to an action in favor of the decedent by reason thereof if death had not ensued.” The next section provides, in substance, that the damages recovered shall be exclusively for the benefit of the decedent’s husband or wife and next of kin, and be distributed as if they were unbequeathed assets left after payment of debts and expenses of administration; that in case there be left a surviving wife or husband, but no children, the recovery shall be for the sole benefit "of such wife or husband, and that the plaintiff may deduct the reasonable expenses of the action, reasonable funeral *363 expenses of the decedent and his commissions on the residue. There can be no doubt that the plaintiff’s negligence would not have defeated a recovery by the wife if she had lived. Her cause of action abated upon her death, but the legislature has substituted a new action and has specified the condition upon which it may be maintained, i. e., the right of the injured person to maintain an action if death had not ensued. While the measure of damages is different (Code Civ. Proc. § 1904) the right of the personal representative to recover depends solely on the right of the injured person to recover, if living, unless we are to read something into the statute. We fail to perceive any reason to do that which could not be urged with equal force if the legislature had in terms provided that in such case the action should not abate, but should survive to the personal representative for the benefit of the estate or- the next of kin. Moreover, this court has once said (Quin v. Moore, 15 N. Y. 432), and once expressly decided (Littlewood v. Mayor, etc., of N. Y., 89 N. Y. 24), that the condition upon which the statutory liability depends is the one expressed in the statute. The maxim, that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, has no application. It was applied in Riggs v. Palmer (115 N. Y. 506) to a case of willful murder, which is very different from mere carelessness. The doctrine of contributory negligence does not rest on that maxim. Different grounds for the doctrine have been stated by judges and text writers, but the most satisfactory is that the law will not undertake to apportion the consequences of concurring acts of negligence; and so when injury is caused by the concurring negligence of two or more persons, each is liable for all the damages thus caused, and for the same reason when damage is caused by the concurring negligence of both the plaintiff and defendant, the former cannot recover at all. The rule *364 would apply in case the plaintiff were suing individually in his own right, e. g., to recover on the defendant’s com-1 mon-law liability to him for injuries to his wife, but it has no application to a statutory action substituted for the wife’s common-law action, which abated upon her death. It was for the legislature to prescribe the condition to the maintenance of the statutory action. There seems to be a sharp conflict of authority in other jurisdictions. It would be profitless to analyze the numerous cases cited by the respective counsel, because we regard the principle of the Littlewood Case (supra) as controlling. That case does not appear to have been called to the attention of the court in the O’Shea Case (supra). The judgment should be affirmed, with costs. Cullen, Oh. J., Gray, Werner, Hiscock, Collin and Cuddebaok, JJ., concur. Judgment affirmed.