
    Norman Hollenbeck, Administrator vs. The Berkshire Railroad Company.
    The question, whether an action for injury to the person, under St. IS42, c. 89, may be maintained by an executor or administrator, depends on the fact whether the testator or intestate lives after the act which constitutes the cause of action, so that a right of action accrues to the person killed, and survives to his personal representative; and the accruing of the right of action does not depend upon intelligence, consciousness, or mental capacity of any kind, on the part of the person injured. '
    
    This was an action on the case, brought in this court by the plaintiff, as administrator of Mrs. Hollenbeck, for damage sustained by her, through the .negligence of the défendants’ agents, by means of which she lost her life. The writ was dated February 8,1851, and the following facts were admitted, namely: —
    That the plaintiff’s intestate was, on the 18th day of October, 1850, between five and six o’clock in the afternoon, riding in an open buggy wagon, upon the highway in Great Bar-rington, at a point where it is crossed by the railroad of the defendants; that she was driving the horse, and was then and there in the exercise of ordinary care; that the horse and wagon then and there came in collision with the cars of the defendants, and the plaintiff’s intestate thereby received such injuries, that by reason thereof she subsequently died; that the accident or collision was caused solely by the negligence and want of care and skill of the defendants; that the plaintiff was appointed administrator of the estate of the deceased, February 5,1851, and that, at the time of the accident, she was a married woman, and the wife of the plaintiff. And if the administrator can maintain an action for the above injuries, all other facts necessary to sustain such action are to be considered as proved, except so far as relates to the time of the death of the intestate, and her mental and physical condition after the injury, which are to be determined by the court from the evidence introduced, from which evidence the court are to draw such inferences, and come to such conclusions of fact, as a jury would be authorized to do. At the suggestion of the presiding judge, it is further provided that, if the court deem it a case that they require to be sent to the jury, then all matters of law are to be settled that are presented upon the evidence.
    The evidence for the plaintiff was fully set out in the agreed statement, but a report of it here does not seem necessary to an understanding of the principle involved in the case.
    If, upon the agreed statement of facts and testimony, the court shall be of opinion that a claim for damages for the injuries received can be maintained by the plaintiff, in this or any other form of action, the defendants are to be defaulted, and judgment rendered for five hundred dollars damages, and costs. If the court shall be of opinion that no such action can be maintained, the plaintiff is to become nonsuit.
    
      G. N. Briggs, for the plaintiff.
    1. The plaintiff’s intestate survived the injury.
    2. Hence the cause of action accrued, and survived to the administrator, and the mental or physical condition of the party injured is not material to the question in this case.
    3. The mental and physical condition of the intestate, after the injury, was such, in fact, that it was not impossible for her to have directed the institution of an action after her decease.
    
      F. Chamberlin, (with whom was W. Porter,) for the defendants.
    Mrs. Hollenbeck could not have instituted or maintained an action after the collision; consequently this action cannot be maintained by the plaintiff as her administrator. Carpenter’s Physiology, 292,302, 328,351, 359, 361; Baker v. Bolton, 1 Camp. 493; Carey v. Berkshire Railroad Co. 1 Cush. 475; St. 1786, c. 81, § 7; Rev. Sts. c. 25, § 22; St. 1840, c. 80; Kearney v. The Boston & Worcester R. R. Corporation, ante 108; Mami v. Same, lb.
   Shaw, C. J.

This is an action on the case, by an administrator, for damage sustained by Mrs. Hollenbeck, the plaintiff’s intestate, by the negligence of the engineers, conductors and managers of the defendants, by means of which she lost her life

The question, presented for the consideration of the court, in the present case, is, whether the facts, stated in the report, show a cause of action which accrued to the intestate in her lifetime, and which survived to her administrator, by force of the St. 1842, c. 89, § 1.

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 con templates a pimctum, 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 main ■ tained by the plaintiff, as her administrator.

Judgment for the plaintiff.  