Bancroft v. Boston & Worcester Railroad
93 Mass. 34
Mass.
1865
Check Treatment
Bigelow, C. J.

We are unable to distinguish this case in principle from Hollenbeck v. Berkshire Railroad, 9 Cush. 478. The continuance of life after the accident, and not insensibility or want of. consciousness, is the test by which to determine whether a cause of action survives. It is so distinctly put in the case cited, and we see no ground for doubting the soundness of the rule as there laid down. In the case at bar it is expressly found that the plaintiff’s intestate survived the accident for fifteen minutes. The length of time during which life remains is not material in determining whether the cause of action survives. Suppose a person should have received an injury by which one of the main arteries was severed, and life thereby extinguished in.five minutes. If he was a soldier or sailor, and received such injury in actual service, there can be no doubt that a nuncupative will made by him would be valid. The time, though brief, would be sufficient to enable the person so injured to do a valid legal act. Can there be any doubt that, under the same circumstances, a cause of action would accrue to him against a party who negligently caused the injury, which would survive to his administrator ? Time, then, cannot be the test by which the right of the personal representative to sue can be tried; nor can the absence or presence of consciousness or sensibility be the standard. It was so held in Hollenbeck v. Berkshire Railroad, ubi supra. We are brought back, therefore, to the *36only rule which can be practically applied, and that is, if the party injured lives after an accident the right to sue accrues and survives.

In Kearney v. Boston 4 Worcester Railroad, 9 Cush. 108, it appeared that the plaintiff’s intestate was instantaneously killed. The motion of the body after the injury, as there shown, did not indicate life, but only the spasmodic muscular contraction which is often the concomitant of a violent death.

Upon the facts stated in the exceptions, we are of opinion that this action may be maintained to recover such damages as the plaintiff can show were sustained by his intestate during the time that he survived. Of course nothing can be recovered by reason of his death which ensued.

Exceptions sustained.