Clark v. New York, Providence, & Boston Railroad

Allen, J. The plaintiff concedes that he cannot maintain an action under Pub. Sts. c. 112, § 212, amended by St. 1883, c. 243, because the negligence set forth was only that of a fellow servant of the plaintiff’s intestate, and his intestate, if he had survived, could not have maintained an action. Dacey v. Old Colony Railroad, 153 Mass. 112, 117. It is also plain that no recovery could be had by the present plaintiff as administrator under the employers’ liability act, St. 1887, c. 270, because where, as in this case, death resulted without conscious suffering, the only action that can be maintained is in the name of the widow or dependent next of kin. Ramsdell v. New York & New England Railroad, 151 Mass. 245. But the plaintiff contends that the combined effect of both statutes is to give an action to the administrator, free from the defence arising out of the relation of fellow servants, in a case where death has resulted without conscious suffering, and where there is no widow nor dependent next of kin. We do not think 42 so. The rights of action, in addition to those already existing, which are given by the employers’ liability act, are limited to the cases specified in that act. Dacey v. Old Colony Railroad, 153 Mass. 112, 118. Judgment affirmed.