That statute provides, that the action of trespass on the case, for damage to the person, shall hereafter survive; so that, in the event of the death of any person entitled to bring such action, or liable thereto, the same may be prosecuted or defended by or against his executor or administrator, in the same manner as if he were living.

In the two cases cited in the argument Kearney v. The Boston & Worcester Railroad Corporation, and Mann v. The Same, ante, 108 an attempt was made by the Court to put a practical construction upon this statute. In doing so, it was necessary to consider what was the law before the statute. It is perfectly well settled, as a rule of the common law, that all rights of action for injury to the person die with the person; and it follows, therefore, that if either the plaintiff or defendant should die before judgment, any existing action, brought to recover such damage, must abate; and if none had been brought by the party injured, none could be commenced by his personal representative. It was the obvious purpose of the statute to reverse this rule of law; to provide that the right of action should survive, as in cases of damage to property, and, of course, be liable to be prosecuted by or against an executor.

The question, in deciding whether any case is within the statute, is, whether the sufferer survived; that is, lived after the act was done which constitutes the cause of action. Life or death, that is the test. If the death was instantaneous, and, of course, simultaneous with the injury, no right of action accrues to the person killed; and, of course, none to which the statute can apply. But if the party survives, lives after it, the right of action accrues to him, as a person in esse, and his subsequent death does not defeat it, but, by operation of the statute, vests it in the personal representative.

As in case of inheritance and descent cast, the law contemplates a punctum, or precise moment of time, which separates life from death; and that is the precise time at which the inheritance passes, and vests in the heir. And although it is a fact sometimes difficult to be ascertained by physical indications, and still more difficult to prove satisfactorily by evidence, yet, like other facts of the like kind, upon which important and valuable rights depend, it must be ascertained and proved by the best evidence which the nature of the case will admit.

We think the accruing of the right of action does not depend upon intelligence, consciousness, or mental capacity of any kind, on the part of the sufferer. A right may accrue, by operation of law, to one in extremis, when it requires no act, or assent, or even consciousness on his part. Should a person, who is heir to his father, be in the lowest condition, but still heir at the moment of the death of his father, the descent would be cast on him, although he might never know it.

On examination of the evidence, a statement of which in writing is exhibited, it seems placed beyond doubt that Mrs. Hollenbeck lived from fifteen to twenty hours after the accident by which she lost her

life; during which time she breathed, swallowed, the blood circulated, and she uttered sounds and manifested signs of life. There is evidence, perhaps not so decisive and satisfactory, that during a considerable part of that time, she manifested intelligence and consciousness, made voluntary motions, and attempted to speak. But, independently of this evidence, we think the evidence conclusive that life, remained, and that, within the meaning of the statute, the cause of action accrued to her during her life, and the action may be commenced and maintained by the plaintiff, as her administrator.

Judgment for the plaintiff.

117. PERHAM v. PORTLAND GENERAL ELECTRIC

COMPANY

SUPREME COURT OF OREGON. 1898

33 Or. 451, 53 Pac. 14

APPEAL from Circuit Court, Multnomah County; E. D. Shattuck, Judge.

Action by W. T. Perham, administrator, against the Portland General Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought under section 371 of the Code to recover damages for the death of plaintiff's intestate, caused by the alleged negligence of the defendant company. The facts, which are practically undisputed, are that on September 27, 1893, the plaintiff's intestate, an employee of the East Side Railway Company, a corporation owning and operating a suburban railway between Portland and Oregon City, was killed while engaged in repairing its bridge across the Clackamas River, by coming in contact with wires owned and used by the defendant company for the transmisson of electricity from its station in Oregon City to its customers in the city of Portland, and which were suspended over and horizontal with such bridge. .

Along in the afternoon, the deceased and his fellow workmen, having completed the work at the north end of the bridge, proceeded to the south end for the purpose of tightening the rods on that end, but, being unable to place the wheel wrench on the nuts because of the standard which supported the cross bar to which the wires of the defendant company were attached, they were directed by the foreman to move it out of the way. At this time the two wires on the west side of the bridge were live wires, but this fact was unknown to the workmen. They proceeded to detach a sufficient number of the wires. . . . The deceased was directed by the foreman to cross over to the west side of the bridge to a hand line and draw up the tools necessary to be used in fastening the standard out of the way of the wrench. In obedience

to this order, he started to walk over on one of the top lateral braces, stepping over the wires and steadying himself by touching them with his hands, and when he reached the two west wires, which were carrying at the time 5,000 volts of electricity, he accidentally took hold of both wires at the same time, and the entire force of the current passed through his body, killing him instantly.

The complainant alleges: That at the time the defendant so placed its wires over the bridge of the railway company it well knew it would be necessary from time to time for such company to cause the bridge to be repaired, and for persons to work upon the top chords and braces thereof; but, notwithstanding such knowledge, it carelessly and negligently strung its wires only 2 feet above such chords and braces, . . . and that it carelessly and negligently permitted the covering used thereon to become worn, defective, and wholly insufficient to render them safe to persons coming in contact therewith. . . . The complaint. then alleges the appointment of the plaintiff as administrator of the estate of deceased, and upon the question of damages avers: "That said Nathaniel Carl Perham at the time of his death was twenty-five years and six months old, unmarried, strong, healthy, temperate, industrious and frugal, of good intelligence and business capacity, and was a skilful carpenter and bridge carpenter and contractor, and was earning and receiving wages at the rate of three dollars per day, and would, if he had continued to live during the ordinary period of life, have continued to earn and receive the same, and even greater, wages for his services, and would have accumulated property and estate of the present value of twenty thousand dollars; and that by reason of his death, occasioned by the negligence and wrongful acts and omissions of the defendant, as hereinbefore set forth, plaintiff, as administrator of said estate, has been injured and damaged in the sum of twenty thousand dollars"; and prays for judgment against defendant for the sum of $5,000, being the limit of a recovery permitted by the statute. . . . A trial resulting in a verdict and judgment in favor of the plaintiff, the defendant appeals, alleging as error: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the Court erred in overruling its motion for a nonsuit; and, third, that the Court erred in the giving and refusal of certain instructions to the jury. Richard Williams and Fred V. Holman, for appellant.

W. W. Thayer and H. W. Hogue, for respondent.

BEAN, J. (after stating the facts). It is claimed at the outset that the action cannot be maintained, because the statute under which it is brought is a survival statute, and, as the complaint alleges and the evidence shows, that the death of plaintiff's intestate was instantaneous. There was no interval of time between the injury and the death within which the deceased could have brought an action for the injury, and therefore there was no right of action to survive to his personal representatives.

The statute provides that a cause of action arising out of an injury to the person dies with the person, except that,

"when the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person."

Hill's Ann. Code, §§ 369, 371. It is agreed that at common law there was no remedy by way of a civil action for the death of a human being, and that a cause of action arising out of an injury to the person died with the person. But the practical impossibility of securing the punishment of mere carelessness by means of a criminal action induced the British parliament in 1846 to pass what is known as "Lord Campbell's Act," by which a civil remedy is given to the personal representative of one whose death is caused by the wrongful act or omission of another for the benefit of the widow, husband, parent, or child of such person. This statute has been in substance, in one form or another, incorporated into the legislation of most of the States of the Union, and the holding is quite universal that it creates a new right of action for the wrongful death, which may be maintained whether it was instantaneous or consequential. 1 Shear. & R. Neg. § 139; Cooley, Torts, 264; and Seward v. Vera Cruz, 10 App. Cas. 59.

(1) But the contention for the defendant is that the statute of this State, unlike Lord Campbell's Act and the statutes modelled after it, does not create a new right of action for the death, but is a survival statute under which the personal representatives of a deceased person may bring an action to recover damages for the injury which caused the death in cases where the party injured was entitled to bring such action, but died before exercising such right; and in support of this view we are referred to Belding v. Railroad Co., 3 S. D. 369, 53 N. W. 750; Kearney v. Railroad Corp., 9 Cush. 108; Bancroft v. Railroad Corp., 11 Allen, 34; Corcoran v. Railroad Co., 134 Mass. 507; Riley v. Railroad Co., 135 Mass. 292; Mulchahey v. Wheel Co., 145 Mass. 281, 14 N. E. 106; Maher v. Railroad Co., 158 Mass. 36, 32 N. E. 950; Railroad Co. v. Pendergrass, 69 Miss. 425, 12 South. 954. But the statutes under which these decisions were made are essentially different from ours. The statute under which the Massachusetts decisions were made provides that . . .

"the action of trespass on the case, for damages to the person, shall hereafter survive, so that in the event of the death of any person entitled to bring such action, or liable thereto, the same may be prosecuted or defended by or against his executor or administrator, in the same manner as if he were living" (St. 1842, c. 89, § 1);

and, as Mr. Chief Justice Shaw says in Kearney v. Railroad Corp.,

supra,

'supposes the party deceased to have been once entitled to bring an action for damages for the injury, and either to have commenced the action and subsequently died, or, being entitled to bring it, to have died before exercising that right."

It is therefore held in that State, under what Judge Cooley characterizes (Cooley, Torts, 264) as "a somewhat nice and technical construction of the statute," that the action will not lie when the death is instantaneous, but, if there is the slightest interval between the accident and the death, it can be maintained; and that the right does not depend upon intelligence, consciousness, or mental capacity of any kind on the part of the deceased after he is injured and before his death. The Mississippi statute declares that

"executors, administrators and collectors shall have full power and authority to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted," and that "executors and administrators shall have an action for any trespass done to the person. . . of their testator or intestate against the trespasser, and recover damages in like manner as the testator or intestate would have had if living, and the money so recovered shall be assets and accounted for as such."

Code, §§ 2078, 2079. The Court held that the purpose of the statute is

"to save to personal representatives the right to begin and carry on such personal actions as the deceased might have begun and carried on if he had not died,"

and that the personal representative can have no standing in Court where the death is simultaneous with the injury, but in such cases all recoverable damages must be sought by the kindred who have sustained the loss. It thus appears that the statutes construed by the decisions relied upon by the defendant were, as interpreted by the Courts, in each instance designed to prevent a cause of action accruing to the deceased in his lifetime for an injury to his person from being defeated by his subsequent death, and not to create a new cause of action for the death.

But such is manifestly not the purpose or effect of our statute. It provides that when the death of a person is caused by the wrongful act or omission of another, his personal representative may maintain an action therefor, that is, for the death, if the deceased might have maintained an action had he lived for the injury which caused the death. The language of the statute is plain, and its meaning obvious. It clearly creates a new right of action in favor of the personal representatives for the death itself, and not an action founded on survivorship, or on any cause of action in favor of the deceased. The death, and not the injury from which the death results, is the cause of action under