
    *Veronica Muhl’s Administrator v. The Michigan Southern Railroad Company.
    In an action by the administrator of a woman killed by the carelessness of the servants of a railroad company in running its locomotive, the petition alleging and the proof showing the deceased to have left a son as her sole surviving heir: Held—■
    1. That it is error to order a nonsuit, on the ground that such child is illegitimate.
    2. That, the fact of such child’s legitimacy or illegitimacy can in no respect affect the right of action in his behalf.
    Error to the district court of Lucas county.
    Suit was commenced on the 11th day of November, 1854, under the code, in the court of common pleas of Lucas county, by Veronica Muhl’s administrator, against the defendant. The petition charges that Veronica Muhl was killed in the city of Toledo, on the 19th of July, 1854, by the wrongful act, neglect, carelessness and default of the defendant, its agents and servants, in running over, or against her, with a locomotive and train of cars moving, without ringing a bell, at a speed of twenty-five miles an hour, in that part of the city whero a speed of over five miles an hour was prohibited by an ordinance, as well as any running at all, without ringing a bell.
    The petition further avers that Jacob Fox, aged two years, is the next of kin to, and the son of the decedent, and her sole heir, and that he has suffered damage by reason of said wrongful act, neglect, and default in the sum of §5,000, for which judgment is asked.
    The action is predicated upon the act entitled “ an act requiring compensation for causing death by wrongful act, neglect, or default,” passed March 25, 1851 (2 Curw. 1673), and averments are made in the petition to bring the case within that statute.
    It is provided by the first section of the act, “ That *whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the pai’ty injured to maintain an action and recover damages in respect thereforthen, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount, in law, to murder in the first or second degree, or manslaughter.”
    The second section provides, that the “ action shall bo brought by and in the name of the personal representatives of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportions provided by law in relation to the distribution of personal estates, left by persons dying intestate,” etc.
    On'the 30th of June, 1855, the defendant answered, denying the default, neglect, and carelessness on its part, and charging it on the decedent; and denying that the locomotive was running without ringing a bell, and also denying that the locomotive was at the time running at a speed equal to twenty-five miles an hour. The answer also denied that Jacob Pox was next of kin to the decedent, and also denied that he had suffered any damage by reason of the acts in the petition complained of.
    At the July term, 1855, of the court of common pleas, the cause was tried to a jury, who, upon grounds not set forth in the record, returned a verdict for the defendant, and the plaintiff appealed to the district court.
    On the third day of the April term, 1856, of the district court, the defendant asked and obtained leave to amend its answer by withdrawing all that part of the answer which denied the killing by the wrongful act of defendant’s servants, and the speed of twenty-five miles an -hour *in the place named, and denied that the locomotive was running without ringing its bell. After this amendment, all that remained in the answer was the denial that Jacob Fox was the next of kin to the decedent, and had sustained the damages alleged. There was no denial of the allegation that Jacob Fox was the son of the decedent.
    At the same term of the district court the cause came on to be tried before a jury, when by order of the court the jury returned a vérdict for the defendant, on which the court entered a judgment of nonsuit, and the plaintiff excepted.
    The bill of exceptions discloses the following facts : .
    The p>laintiffs counsel having stated to the jury, what they claimed the facts to be, the defendant’s counsel thereupon admitted the railroad company to be in the wrong, and would make no defense to the action except on the question whether Jacob Fox was “ next of kin” to the decedent. The plaintiff then proved by Mrs. Anna Fritz, a witness on the stand, and a sister of decedent, that she and decedent came to Toledo in June, 1854; that decedent was run over by defendant’s locomotive and train about 6 o’clock r. m. of the day alleged, and died of the injuries thereby received, about 5 o’clock the next morning; that said sisters came from Switzerland, where their parents resided, traveling together until they arrived in Toledo ; that they had both lived at home with their parents in Switzerland until about twelve weeks after said Jacob Eox was born ; and that ho was born of and was the only child of decedent, and ivas about two years old at the time of her death.
    The qilaintiff’s counsel then asked a question calculated to elicit proof upon the matter of damages, when the defendant’s counsel objected that the plaintiff must first prove that said Jacob Eox was born in lawful wedlock. The court sustained the objection and the plaintiff excepted.
    The plaintiff's attorneys then informed the court that, though *they had other witnesses to the facts proven, they should not offer additional facts as to the parentage, or legitimacy of said Jacob Eox, but desired to go on with their proof as to damages. To this the defendant objected and moved the court to rule out the testimony already given, and to order a peremptory nonsuit, upon the ground that the proof showed said Jacob Eox to be the illegitimate child of the decedent, and therefore not “ next of kin ” to her within the meaning of the statute governing this suit, and the plaintiff’s counsel having in the argument conceded the illegitimacy of said Jacob Eox, the defendant’s motion was sustained, and the plaintiff nonsuited by order of the court. To which ruling and order the plaintiff excepted. *4
    The plaintiff then moved the court to set aside the nonsuit and grant a new trial, for reasons assigned in the bill of exceptions, which are substantially the same as the grounds taken in the petition in error, but the court refused to grant a new trial, and gave judgment for the plaintiff, to which refusal and judgment the plaintiff excepted.
    The errors assigned are:
    1. The court erred in holding that proof of the fact that Jacob Eox was born of the intestate, and was her only child, did not show said Jacob Eox to be “next of kin” to said intestate within the meaning of the statute under which said suit was brought, and that additional proof must be given that said Jacob was born in lawful wedlock, or the testimony would not be sufficient to go to the jury.
    2. The court erred in ruling that the plaintiff should not be permitted to introduce proof of damages until he had first proven that said Jacob had been born in lawful wedlock.
    
      3. The court erred in Holding that said Jacob Fox, upon tbe testimony offered to the jury, was not “next of kin” to said Yeronica Muhl.
    *4. The court erred in ruling out the plaintiff’s testimony, and in directing the jury to return a verdict against him.
    5. The court erred in refusing to grant a new trial.
    6. The court erred in rendering judgment for the defendant
    
      Hill & Pratt, for plaintiff in error.
    
      M. B. & B. Waite, for defendant in error.
   Sutliff, J.

It is difficult to perceive upon what ground the judgment of nonsuit, shown by the record, was rendered. "When the defendant’s counsel, under leave to amend, had withdrawn all that part of the answer that denied the killing of decedent by the wrongful carelessness of defendant’s servants, in operating their locomotive, there remained no denial of the right of action.

The case presented by the record, was an. averment in the petition, and an admission by the answer, of the facts constituting, by the express provisions of section 1 of the statute, a good cause of action against the defendant. The acts alleged in the petition and so admitted in the answer, if death had not ensued, would obviously have entitled the party so injured to an action for damages against the defendant. ¿Therefore, in the language of section 1, “then, and in every such case, the corporation, which would have been liable if death had not ensued, shall be liable to an action for damages” upon the death of the person by reason of the injuries.

It is also provided by section 2, that such right of action shall be brought by and in the name of the personal representative of the deceased; and the action in this case was so brought.

There being, then, a right of action shown, and the proper parties plaintiff and defendant in court, it could not be said that any cause for nonsuit existed. Eor, whether *Jacob Fox, the son of the deceased, or Anna Fritz, her sister, who is shown by the record to have been in .court, was to be regarded nearest of kin, could in nowise affect the cause of action. That question might be a very proper one to be settled in determining who in fact was the legal beneficiary, and finally to be adjudged entitled to the fruits of the judgment; but it could at most only affect the amount of damages. The right of action, in either case, existed, by force of the statute, in the administrator.

But it is quite evident that the nearness or remoteness of kin on the part of the son of the deceased mother, neither in fact nor by any canon of descent under the statute, depended at all upon the circumstance of his being born within or without lawful wedlock.

The judgment of the district court must therefore be reversed and the cause remanded.

Judgment accordingly.

Brinkerhofe, C. J., and Scott, Peck, and G-holson, JJ., concurred.  