McVey v. Illinois Central Railroad

Cooper, C. J., delivered the opinion of the court. The appellant, who is the widow of John S. McVey, deceased, was appointed administratrix of his estate, to the end that in such character she might prosecute this suit. The form of the grant of the letters is peculiar, adopted, we infer from the brief of counsel, upon the idea that if the exigency should arise, the plaintiff might be considered either as administratrix suing as the representative of the deceased or as a quasi administratrix, authorized to sue upon a right of action vested in herself as widow, and in her infant child, for the negligent killing of Mr. McVey by the defendant. The declaration avers that McVey was employed by the defendant company as a brakeman, and while engaged in said service, and in the performance of his duty, was killed by the derailment of a car, which derailment was caused by the negligence of the superior officers and agents of the defendant, which negligence consisted in supplying engines too heavy for the rails, by reason of which the rails were crushed and spread, and the car thrown from the track. It is further averred that the plaintiff, his widow, and one child, born after his death, were the sole distributees of the deceased, who, at his death, owed no debts. The plaintiff’s contention is, that, as the administratrix of the deceased, she is entitled to prosecute the action which he had, and which, but for his resulting death, he might have maintained, and if it should appear that there was no right of [493] action in the deceased, then that she is entitled to recover for herself and child for the injury they have sustained by his death. On the trial of the cause the court gave the general charge for the defendant. It is unnecessary to review all the proceedings in the court below, for, in view of the evidence on one point, the case lies within narrow limits, and is controlled by our previous decisions. We think the evidence shows beyond all doubt that the deceased was instantly killed. The engine and car were running at a rapid rate; the car was derailed, turned over, and fell upon the head and the upper half of the body of the deceased, and there is nothing in the evidence to suggest that he survived for the shortest time the completion of the accident. When the •engineer reached the scene, within two or three minutes, the deceased was then dead, and though no post mortem examination of the body was made to determine the character of the injury, the nature of the force by which the death was occasioned, the weight of the car and the situation of the body when found lead to the conclusion that the death was instantaneous. Such being the case, there was no right of action in the deceased, and, consequently, none which survived to his representative. Railroad Co. v. Pendergrass, 69 Miss., 425. The right of action, which, notwithstanding the death of the party injured, survives to his personal representative under § 2079 of the code of 1880, § 1916 of code of 1892 and § 193 ■of the constitution, is entirely distinct from the action given to the next of kin by § 1510 of the code of 1880, § 663 of code •of 1892. They may co-exist, but have no connection. Railroad Co. v. Phillips, 64 Miss., 693. We are not to be understood as assenting to the proposition •of counsel, that recovery may be sought in one action for the' injury done to the deceased and that done to the next of kin. An examination of the statement of facts in the case of Railroad Co. v. Cook, 63 Miss., 38, which is cited by counsel in .support of this suggestion, shows that an agreement had been [494] entered into between the parties by which ! ‘ all questions of law and fact were eliminated, ’ ’ except as stated by the parties, and it was agreed that, ! ‘ if, in either [any] phase of the case, the supreme court shall be of opinion that the plaintiff is entitled to a recovery,” the judgment should be affirmed. Accepting this agreement of the parties, and being of opinion that the plaintiff, as mother of the deceased infant, was entitled to recover, we affirmed the judgment. But that decision is not authority for the proposition that these two separate and independent actions may be joined, and a recovery for both the personal representative and the next of kin had in one suit. The present action must be treated as that of the personal representative of the deceased, and not that of his widow suing for the loss she has sustained by his death. Whatever may have been or may be that right of the widow it finds, therefore, no place for discussion or decision here. Considered as a suit by the personal representative only, the fact that the death of the deceased was instantaneous is conclusive against a right of recovery. The judgment is affirmed.