Thе first question is, whether the action of trespass can be maintained. In this point of view, it is immaterial how the declaration is framed. Suсh acts, and such only, as are committed with violence, vi el armis, to the person, property, or relative rights of another, are, сomprehended under the general division of trespass. Those wrongs alone are characterized as trespass the immediate consequences of which are injurious to the plaintiff. If the damage sustained is a remote consequence of the act, the injury falls under the denomination of trespass on the case. Hammond’s Nisi Prius 34. Chitty lays down the law as follows : If the injury be forcible, and occasioned immediately by the act of the defendant, trespass, vi et armis, is the proper remedy ; but if the injury be not in legal contemplation forcible, or not direct and immediate on the act done, but only consequential, then the remedy is by action on the case. 1 Ch. Pl. 122; Dalton v. Favour, 3 N. H. 465.
It is stated in the case that the injuries complained of were caused by — i. e., were the consequence of — the gross сarelessness of the defendants. Trespass vi et armis cannot be maintained on this state of facts. It is true that the carelessness is said to be gross, and we may suppose that the plaintiff means to have it inferred that it was equivalent to malice ; but although the grossness whiсh the jury find equivalent to malice may in some instances affect the liability of the party, it cannot change the nature of an act from negligent to violent, or from consequential to immediate.
The allegation in the declaration of the crushing of Sawyer is not the main charge: it is an averment incidental to the main charge, that, by crushing Sawyer between the cars, the defendants destrоyed his clothing. The substance of the declaration is, that by carelessly running their cars, and by crushing Sawyer between them, the defendants dаmaged and destroyed his clothing. Being in the employment of the corporation as a brakeman, he took upon himself the оrdinary risks and perils incident to such service, his compensation in legal presumption being adjusted accordingly.
Farwell
v.
B. & W. R. R.,
*519
Neither the heir nor the executor represents the person of the ancestor or testator, except as to his real and personal estate. Com. Dig. “Administration” (B, 13). Inasmuch as an action of trespass is a right which the deceased possessеd in his individual capacity, the general rule of law is, that a personal right of action dies with the person. Hammond’s Nisi Prius 78; Wyatt v. Williams, 43 N. H. 102; Vittum v. Gilman, 48 N. H. 416. An exception to the general rule is derived from the statute 4th Edward III, c. 7, by which it was enacted, in substance, that executors may have an action оf trespass done to their testators, as of the goods and chattels of the same testators carried away in their life. This statute, says Ohitty, has been construed to extend to every description of injury to personal property, by which it has been rendered lеss beneficial to the executor, whatever the form of action may be. 1 Ch. Pl. 57. Accordingly the executor always concludеs his count, “to the damage of himself as executor,”' — 4. e.,to the diminution of that estate which he as executor personifies. Hammond’s Nisi Prius 79. Ever since that stаtute it has been held that personal actions could only be maintained by plaintiffs, executors, when the damage was in diminution of the estate represented, and against defendants, executors, when the trespass had tended to benefit the estate represented.
By our statute, pending actions may be prosecuted after the death of the plaintiff, although the cause of аction does not survive. Gen. St., c. 179, s. 16; c. 207, ss. 11, 12. But we have no statute extending the law in regard to those causes of action which survive. Gen. St., c. 179, s. 7. The rule of pleading, which requires that in all *520 аctions by an administrator or executor the count should conclude “to-the damage of himself as executor or administrator,” is by no means technical or formal. This conclusion conforms to the rule of law still existing, that the cause of action does not survive unless it was a cause which diminished the estate represented by the executor or administrator ; and a declaration would be bad, on general demurrer, if it concluded otherwise than to the damage of the plaintiff as executor or administrator.
If this bе so, no damages can be recovered beyond the value of the clothing, and interest, — neither for the injury to the person оf the deceased, or for injury to his feelings. Nor can the personal injury or death be considered on the question of damagеs, because by none of these particulars was there a diminution of the estate which the plaintiff represents. The gist of the аction is the destruction of the clothing; and the action only survives so far as that destruction diminished the assets. This view renders unnecessary any discussion of the theory of exemplary damages. If the plaintiff can recover nothing' for the loss of the life of her intestаte, nor for any injury to his person before death, she cannot indirectly recover for the same thing under the name of exemplary damages.
Case discharged.