Mulchahey v. Washburn Car Wheel Co.

Deyens, 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 the defendant, and to show that an action therefor accrued to the intestate in his lifetime, 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 ten 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 intestate, and therefore that the plaintiff was entitled only to nominal damages. There was no evidence of any expenses or loss incurred before death by reason of the accident, which in itself might afford ground for substantial damages. Bancroft v. Boston & Worcester Railroad, 11 Allen, 34. The question is as to the correctness of the latter ruling. The plaintiff deems these rulings inconsistent each with the other. We do not perceive the inconsistency. Instantaneous death and absence of conscious suffering after a fatal injury are readily distinguishable, and have been distinguished in our decisions. The continuance of life after the accident, and not — 286 — insensibility .or want of consciousness, is the test by which it is determined whether a cause of action survives. Hollenbeck v. Berkshire Railroad, 9 Cush. 478. But as the plaintiff can only recover such damages as she can show were sustained by her intestate, if he became instantly insensible, and so remained until his death, nothing can be recovered for any physical or mental suffering sustained by him. Nothing can be recovered by the administratrix on account of the death which subsequently ensued. Bancroft v. Boston & Worcester Railroad, ubi supra. In Kennedy v. Standard Sugar Refinery, 125 Mass. 90, where the intestate fell from a platform twenty feet in height, became unconscious on striking the ground, and, in one aspect of the evidence, remained so until his death, the plaintiff was allowed at the trial, by the judge at nisi prius, to recover for mental suffering endured during his fall. It was held in this court that the burden of proof was upon the plaintiff to show that her intestate actually endured mental suffering during the fall, before she could recover damages on that account; that, as no proof was furnished of any mental suffering during the fall, and as the question whether he did suffer mental terror or distress was purely a matter of conjecture, no damages could be recovered on that account. Whether the person injured endured conscious suffering has sometimes depended upon the question whether his death was instantaneous, but the two inquiries are distinct. Corcoran v. Boston & Albany Railroad, 133 Mass. 507. Tully v. Fitchburg Railroad, 134 Mass. 499. Riley v. Connecticut River Railroad, 135 Mass. 292. That an adequate cause of the intestate’s death, and one which must be held to have produced it, is found in the crushing of his body and disruption of his bowels, must be conceded. Viewed in the most favorable light for the plaintiff, this certainly fails to show any conscious pain or suffering on the part of the intestate. When found, although breathing, he was unconscious. Upon this state of facts, even if it were possible that there was some brief conscious suffering, evidence of it is not afforded, and it is left purely conjectural. The presiding judge did not undertake to say, as the plaintiff urges, that, because ten minutes after the accident the victim of it could not speak and was unconscious, he might not have passed into — 287 — that condition after brief but terrible suffering, but said, in substance, that the case did not afford evidence that he had suffered consciously. This was correct. The plaintiff urges that the case at bar strongly resembles Nourse v. Packard, 138 Mass. 307; but the evidence here wanting was afforded in that case. The dead body of the intestate was there found under a heap of loose grain, and there was expert testimony that he died from suffocation, and that a person situated as he was would retain consciousness from three to five minutes. It was a reasonable conclusion that he lived in a state of conscious suffering for a few minutes after the fall of the grain upon him which caused his death. Judgment on the verdict.