Bligh v. Biddeford & Saco Railroad

Strout, J. A son of the plaintiff, aged two years, was run over and instantly killed by an electric car of the defendant. This action is brought by the father to recover for loss of service, expenses of burial, etc. At common law, no remedy by action existed for loss of life. By statute of 1891, an action is given to the personal representatives of the deceased, for the benefit of persons therein named; This suit is not under that statute. We are aware of the case Ford v. Munroe, 20 Wend. 209, in which such an action was sustained. But it does not appear in that case that the killing was instantaneous. We have found no other case in which an action by the father for loss of services has been sustained, where the death of the minor was instantaneous. The decisions in Massachusetts are the other way. Moran v. Hollings, 125 Mass. 93; Carey v. Berkshire Railroad, 1 Cush. 475; Kearney v. B. & W. R. C., 9 Cush. 108. It was early so adjudged in England. Baker v. Bolton, 1 Camp. 493, and has remained the doctrine of the English courts until the statute 9 and 10 Vic., c. 93, afforded a remedy to an administrator for the benefit of the persons named in the act. Whether the law ought to allow a remedy like that claimed in this case, is for the legislature to determine. As the law now is, none exists. The nonsuit was properly ordered. Exceptions overruled.