Battany v. Wall
122 N.E. 168
Mass.
1919
Check Treatment
Pierce, J.

Under essential conditions sufficient to warrant the submission to the jury, of the issue of the due care of the intestate and the negligence of the defendant, the intestate was struck and severely injured by a motor car driven by the defendant at 7:15 P. M. on March 16, 1915, and thereafter lived until midnight. A right of action simultaneous with the injury accrued to the intestate, “as a person in esse, and . . . [her] subsequent death does not defeat it, but, by operation of the statute, vests it in the personal representative.” 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 it is determined whether a cause of action survives.” Mulchahey v. Washburn Car Wheel Co. 145 Mass. 281, 285, 286. Kearney v. Boston & Worcester Railroad, 9 Cush. 108.

The direction of the verdict for the defendant was error, because the plaintiff as matter of law was entitled to a verdict for nominal damages should the jury find the injury resulted from the negligence of the defendant without the contributing negligence of the intestate. Mulchahey v. Washburn Car Wheel Co. supra. St. 1914, c. 553. As there was no evidence of injury to property or property rights of the intestate, the plaintiff to recover actual damages must show the intestate suffered conscious pain or suffering. Kennedy v. Standard Sugar Refinery, 125 Mass. 90. The only evidence to indicate consciousness of the intestate between the moment of her injury and death was the testimony of the mother, corroborated by that of the father, that, at the hospital, the child in answer to her mother’s call said “Oh, momma,” and “That was all she said that night.” Upon this testimony the question presented is, did the response “Oh, momma” warrant a finding by the jury of conscious pain or suffering? The answer to this question may depend largely upon testimony which the *141record cannot reproduce, which discloses to the jury that the words “Oh, momma” were uttered by the child with an inflection and intonation which indicated conscious pain or suffering or merely a subconscious recognition of the voice and presence of the mother and a reflex struggle to show it. In the silence of the record we cannot say there was no issue of fact to warrant a jury in finding conscious suffering.

In the opinion of a majority of the court the exceptions must be sustained, the new trial to be confined to the first count of the declaration; and it is

So ordered.