GRAND TRUNK RY. CO. OF CANADA v. FLAGG, 156 F. 359

LOWELL, Circuit Judge. Ernest Flagg, the plaintiff’s intestate, a child five years old, was struck by the defendant’s engine, and died, as will hereinafter be set out more fully. In so far as the suffering caused him by the injury complained of gave a right of action to the child in his lifetime, this action'survived to the plaintiff, by virtue of the statutes of Maine, and the plaintiff thereupon sued the defendant at law, and recovered judgment upon the verdict of a jury. At the trial the defendant seasonably moved the Circuit Court to direct a verdict in its favor, and it duly excepted to the court’s refusal.

The motion was urged upon two grounds, which sufficiently appear from the record as a whole. 1. That there was no evidence of the child’s suffering. The action was based upon a right recognized by the common law, apart from statute. The 'plaintiff’s right, thus sued on, gave him damages only for the suffering of his intestate, not for his intestate’s death. If the child did not suffer, his administrator cannot recover in this action. The defendant’s engine struck the child’s forehead, so as to break in' the skull and to force back the top of it, exposing and crushing parts of the brain.

The child breathed for three-quarters of an hour. As evidence of his suffering during this time, the plaintiff relied upon his moans, the motions of his lips, and certain sounds which his father took to be -the words “Papa” and “Mamma.” The child was congenitally deaf, and therefore almost dumb. Momentary consciousness of suffering, incidental to death, and at law inseparable from it, may not be excluded by this evidence; but we hold that the plaintiff offered no proof of that suffering, for which alone the law in its practical administration can award damages. The Corsair, 145 U. S. 335, 348, 12 Sup.

Ct. 949, 36 L. Ed. 727. It follows that the learned judge below erred in refusing to direct a verdict for the defendant. 2. As additional evidence of the child’s suffering may be introduced at the next trial, we are obliged to examine also the other ground upon which the defendant rested its motion for a verdict. It contended that there was no evidence of the negligence of its engineer, the defendant’s servant alleged to be in fault. When struck, the chiTcl was a trespasser upon the railroad track. As to him, the engineer was required only to refrain from willful or wanton injury.

The engineer testified that the child sprang upon the track when the train was but 15 or 20 rods away. To stop the train within that distance was impossible. There was evidence that the child was seen walking down the track just before the engine struck him. The plaintiff contended that the jury might infer the child’s longer presence on the track from the fact that the private way, by which the child probably entered the railroad location, crossed it 78 feet from the place of the accident, and so that the child had probably walked along the track for that distance.

As the track was straight, and the view unobstructed, the plaintiff further contended that the engineer must have seen him for some time before the accident, and therefoi-e must have run over him recklessly. But to rely upon these mere probabilities is to disregard direct evidence for conjecture. The probabilities are too slight to warrant a verdict for the plaintiff. The circumstances of the case are too little known. There is no evidence in the record to show that the engineer saw the child while it was possible to stop the train. Unless he did, the defendant corporation was not at fault toward a trespasser.

On this ground, also, the jury should have been directed to return a verdict for the defendant. _ _ The judgment of the Circuit Court is reversed, and the case is remanded to that court, with directions to set aside the verdict and for further proceedings not inconsistent with this opinion; and the plaintiff in error recovers its costs of appeal.