Forms, and is here given, although, as stated in the last above note, there 38. Risk of Employee.-In the recent case of McGlynn v. Brodie, 31 No. 363. ix. By Executor or Administrator, against a Railroad Company, for Injuries [TITLE.] The plaintiff, as the executor [or administrator] of the ......... I. That on the .... day of II. That on that day said defendant received one A. B. to them by said A. B.] a sta- III. That while he was such passenger, at... occurred, by which [the cars of the said railroad were thrown from the track, and the car in which the said A. B. then was, was precipitated down an embankment, and the said A. B. was thereby killed, or as the case may be.] IV. That on the....day of..... 187., letters of administration upon the estate of the said A. B. were duly issued by the Probate Court of the county of........to the plaintiff, by which he was appointed administrator of all the goods and credits belonging to the said A. B. at the time of his death, and he thereupon was qualified and entered upon his duties of such administration. V. That by reason of the premises the plaintiff, as such executor [or administrator], hath sustained damage in the sum of........ dollars. [Demand of Judgment.] 39. Conflict of Laws.-An administrator appointed in one State cannot maintain an action there, on the statute of another State, which gives to the personal representatives of a person killed by wrongful act, neglect or default, a right to maintain an action for damages in respect thereof, notwithstanding the death, for the benefit of the widow or next of kin, against the party that would have been liable if death had not ensued: Richardson v. N. Y. Cent. R. R. Co., 98 Mass. 85. 40. Damages.-Damages ensuing from bodily pain need not be alleged specially in the complaint: Curtis v. Rochester and Syracuse R. R. Co., 20 Barb. 282; affirmed, 18 N. Y. (4 Smith) 534. But funeral expenses are not recoverable, except as special damages, if recoverable at all, and must be specially pleaded: Gay v. Winter, 35 Cal. 153. As to measure of damages in case of the death of a woman having children, see Tilley v. Hudson River R. R. Co., 29 N. Y. 252; S. C., 24 N. Y. 471; McIntyre v. N. Y. Cent. R. R. Co., 43 Barb. 532. As to the rule for pleading special damages, see ante, p. 191, par. 113-114. 41. Liability for Causing Death.—When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just: Cal. Code C. P., sec. 377. In the case of a minor, the father, or where he is dead or has deserted his family, the mother, or the guardian of a ward may bring the action: Id. sec. 376; see p. 67, ante, and note 43, post. 42. Limitation of Action.-In California, every action for the death of a person by wrongful act shall be commenced within two years after the death of such deceased person: Cal. Code C. P., sec. 339, sub. 3. 43. Negligence. The complaint alleged that a car of the defendant, in charge of their servant and agent, was wrongfully driven over a child, where by, etc., and that the defendants, by negligence of themselves and their agents, ran over the child and caused her death: Held, that evidence was admissible of any facts of negligence, on the part of the defendants in the construction of the cars, which would have aided in causing such injury: Oldfield v. N. Y. and Harlem R. R. Co., 3 E. D. Smith's C. P. R. 103. 44. Parties Plaintiff.-A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child; and so may a guardian for the injury or death of his ward: Cal. Code C. P., sec. 376: see ante, p. 67. A parent may recover the expenses of nursing and healing a minor child, even though the child be so young that there is no loss of service: Sykes v. Lawlor, 49 Cal. 236. An action may be maintained by a father as administrator of unmarried infant son, and it is not indispensable that deceased should leave a widow and next of kin: McMahon v. Mayor of N. Y., 33 N. Y. 642. A husband cannot maintain an action for the instantaneous killing of his wife through the negligence of defendant. The well settled common law rule that no damages can be recovered by action for injuries resulting in immediate death applies to actions brought by a husband for injury to his wife. The loss of society and assistance do not alter the case; and the New York Statute of 1847 has not extended the remedy to such an injury: Greene v. Hudson River R. R. Co., 2 Keyes, 291; affirming 28 Barb. 9. An action in Pennsylvania against a railroad company for negligence in causing the death of a father, is properly brought in the name of all the children. The recovery is for the benefit of all, the amount to be distributed as in case of intestacy: North Penn. R. R. Co. v. Robinson, 44 Penn. St. R. 175. 45. Parties Defeudant.-It seems that the decisions of the New York Court of Appeals, in Chapman v. New Haven R. R. Co., 19 N. Y. 341; and Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492, to the effect that a passenger in a vehicle or railroad car, injured by its collision with another vehicle or car, resulting from the concurrent negligence of the owners of such vehicles or cars, or their employees, may maintain a joint action against both, are in a great measure overruled by the latter case of Brown v. N. Y. Cent. R. R. Co., 32 N. Y. 597; Mooney v. Hudson River R. R. Co., 5 Rob. 548. 46. Personal Representatives.-Every action for the death of a person, caused by wrongful act, neglect, or default of a person or corporation, shall be brought by and in the names of the personal representatives of such deceased person: See notes 41 and 44, ante. The provision of the Louisiana statute, that the cause of action for the wrongful death of a person shall survive to the personal representatives for the space of one year from the death, is a legal subrogation in favor of the persons designated to the right of action of the deceased; and in case of a suit under that subrogation, the plaintiff should allege that his cause of action was derived from deceased under the statute, and a neglect to do this will be fatal: Earhart v. New Orleans, etc., R. R. Co., 17 La. An. 243. 47. Special Damage. -In an action for death by the wrongful act of a person, it is not necessary to allege or prove special damage: Keller v. N. Y. Cent. R. R. Co., 24 How. Pr. 172; McIntyre v. N. Y. Cent. R. R. Co., 43 Barb. 532; see ante, p. 191, para. 113-14. 48. What must be Shown.- To maintain an action for causing by wrongful acts the death of or injury to a person, two things must be shown: First. An obstruction in the road by the fault of the defendant; Second. No want of ordinary care on the part of the plaintiff or party injured. The gravamen of the action is the negligence of the defendant, and plaintiff cannot recover where it appears that the negligence of the deceased or person injured contributed in any degree to the death or injury sustained: Gay v. Winter, 34 Cal. 153. But in cases where the negligence of the defendants is affirmatively shown, and there is no proof of the conduct of the deceased or person injured, the jury are at liberty to infer ordinary care and diligence on his part, taking into consideration his character and habits as proved, and the natural instinct of self preservation: Gay v. Winter, 34 Cal. 153. In such actions, if the plaintiff makes a case which does not charge the deceased or the person injured with negligence, the case should be permitted to go to the jury, under appropriate instructions: Gay v. Winter, 34 Cal. 153. 49. Widow and Next of Kin.-It was held in the Superior Court (N. Y.), that a complaint of this kind must expressly allege that there is a widow, or next of kin, giving their names, and alleging that they had sustained pecuniary injury: Safford v. Drew, 3 Duer, 627. But the doctrine of this case is entirely inconsistent with the later cases of Chapman v. Rothwell, Ellis Bl. & E. 168; Quin v. Moore, 15 N. Y. 436; Oldfield v. New York and Harlem R. R., 14 N. Y. 316; Dickens v. New York Central R. R., 28 Barb. 41; Keller v. New York Central R. R., 17 How. Pr. 102. The first of these cases expressly decides that no allegation of damage to the next of kin is necessary; and though the whole doctrine of Safford v. Drew is not overruled in terms, yet it is in effect, and that nominal damages, at least, may be recovered on the above complaint, with liberty to prove actual damage. In California, however, the statute especially provides for this class of actions: See Cal. Code C. P., secs. 376, 377. No. 364. x. Against a Municipal Corporation, for Injuries Caused by Leaving the Street in an Insecure State. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is a municipal corporation, duly organized under the laws of this State. II. That, among other things, it is by its charter made its duty to keep the streets in said city in good order, and at all times properly to protect any excavations made in said streets, by placing lights and signals thereat to indicate danger. III. That a certain street in said city, known as .... was and is a common thoroughfare, and used by the citizens thereof and others; and that the duty of said defendant as to said street was, and became at the time hereinafter mentioned, a matter of public and general concern. ... 187., IV. That on or about the .......... day of ............. a deep and dangerous excavation [hole or trench] was dug in said street [or an obstruction was placed in said street, and negligently left therein], and suffered by the defendant, during a night on or about said day, to remain open, exposed, and without proper protection, and without any light or signal to indicate danger. V. That the plaintiff on the night aforesaid was lawfully traveling on said street, and was wholly unaware of danger, and was accidentally, and without fault or negligence on his part, precipitated into said excavation [hole or trench], whereby he received great bodily injury, and was made sick and sore, and was thereby kept to his bed, and detained from business for..... days, and was in consequence thereof compelled to expend dollars for medical attendance and nursing, and has been made permanently lame, to his damage dollars. [Demand of Judgment.] 50. Cause of Death. The responsibility in cases of a personal injury from falling through a defective sidewalk is upon him who has the control and management of the work: Boswell v. Laird, 8 Cal. 469; Fanjoy v. Seales, 29 Cal. 243; followed in Du Pratt v. Lick, 38 Cal. 691; see, also, Eustace v. Jahns, 38 Cal. 3. 51. Corporation, Liability of.-A city having the power and duty of lighting its streets is liable for injuries or death caused by a party's falling off a bridge, opened for the passage of a vessel, in consequence of its being insufficiently lighted: Chicago v. Powers, 42 Ill. 169; see as to sidewalks, Bloomington v. Bay, Id. 503. As to the liability of corporations for the neglect to have proper precautions taken for the safety of the public, see Grant v. City of Brooklyn, 41 Barb. 381; Davenport v. Ruckman, 10 Bosw. 20. Not liable for negligence of member of paid fire department: Howard v. San Francisco, 51 Cal. 52. 52. Defect in Highways.-Plaintiff was injured owing to a defect in a highway, but would not have been if the horse had not been vicious. He had never driven the horse before, and did not know of its viciousness: Held, that plaintiff could recover substantial damages: Daniels v. Saybrook, 34 Conn. 377. 53. Defective Pier.-As to the liability of the owners or lessees of a defective pier, see Moody v. Mayor of New York, 43 Barb. 282; Cannavan v. Conklin, 1 Daly, 509. 54. Drover, Liability of.-The law governing the liability of persons for driving cattle through the street of a city, for damages caused by injuring a person lawfully in the street, without any fault on his part, is the same as that by which the carriers of passengers are governed: Ficken v. Jones, 28 Cal. 618. 55. Dug, Opened and Made.-In a suit caused by a person's falling into an area in a public sidewalk, a declaration charging that the defendant "dug, opened and made" the area, is sustained by proof that he formed |