Personal Injuries — Employers' Liability Act — Conscious Suffering — Instantaneous Death — Due Care — Amendment. If a brakeman is thrown from a slowly moving freight train by a jerk of the train, but by reason of his foot being caught by something on the cars, he is dragged nearly two hundred feet during which he receives but slight bodily injuries, and he is then drawn under the cars, which sever his head from his body, his death is preceded by a period of conscious suffering which cannot be separated from the instant in which he is killed so as to enable his next of kin to maintain an action for his instantaneous death under St. 1887, c. 270, § 2.
A brakeman while descending a ladder at the end of the car at the head or rear end of a freight train, which was being slowly backed by a shifting engine, was thrown to the ground by a jerk of the train, his foot was caught by something on the car so that he was dragged some distance, and then, although the stop signal was given at once and the brakes applied, he was drawn under the cars and killed. Held, in the absence of evidence that he was in the exercise of due care, that the train was under-manned, that the cars or track were defective or that those in charge of the train were guilty of negligence, an action could not be maintained by his next of kin under St. 1887, c. 270, § 2. Held, also, that, if an amendment of the action were authorized, the result would be the same should the action be amended by making his administrator the party plaintiff under St. 1887, c. 270, § 1.
MORTON, J.
The plaintiffs concede that if the death was with conscious suffering, the action, which is brought under the employers' liability act by the next of kin of the deceased who were dependent on him, cannot be maintained. The accident occupied only a few seconds, and although the second in which the deceased was killed was separated as a point of time from the second in which he fell from the car, the accident was one accident from its beginning to its end, in which the same causes were operating during the brief interval which elapsed between the fall of the deceased and his death. We do not see how without resorting to what would seem to partake of a meta-physical nicety the second in which the deceased was killed can be separated from the second in which he fell and the seconds which intervened between that and the death so as to say that the death was without conscious suffering.
We are also of opinion that if the plaintiffs were allowed to amend, assuming that they could properly be allowed to do so, the result would be the same. It does not appear what caused the deceased to fall. There is no presumption that he was or was not in the exercise of due care. For aught that appears the accident may have been due to his own carelessness. Neither do we see any evidence of negligence on the part of the defendant. It is admitted in substance by the plaintiffs that the jerking or jolting of the car when the plaintiffs' intestate fell was incident to the ordinary motion of a car on a train when backed as this was by a shifting engine. The train was being backed slowly, and it does not appear that it was under-manned or that the engine and car or track was defective or that those in charge of the engine and train negligently did anything that they ought not to have done, or omitted to do anything which they ought to have done, after they were warned that something, they did not know what, was wrong.
Verdict to stand; judgment for the defendant.