[242 U.S. 144, 145] Messrs. A. L. Janes and M. L. Countryman for plaintiff in error.
Mr. Samuel A. Anderson for defendant in error.
Mr. Justice McReynolds delivered the opinion of the court:
While employed by the railway company as a switchman, William M. Ward was accidentally killed, December 13, 1912; and the administrator brought suit in a state court under the Federal Employers' Liability Act, as amended, for the benefit of his father and mother, seeking to recover their pecuniary loss and also damages for the injuries suffered by him prior to death. Some evidence tended to show that, after being run over by one or more cars, although wholly unconscious, the deceased continued to breathe for perhaps ten minutes. Testimony of other witnesses supported a claim that there was no appreciable continuation of life. Judgment upon an unapportioned verdict, in favor of the administrator, was affirmed by the state supreme court, October, 1914. The railway company duly excepted to the following portions of the charge:
In St. Louis, I. M. & S. R. Co. v. Craft, 237 U.S. 648, 655 , 658 S., 59 L. ed. 1160, 1162, 1163, 35 Sup. Ct. Rep. 704, 9 N. C. C. A. 754 (June 1, 1915) we held that, under the Employers' Liability Act, as amended in 1910, 36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, 8662, the administrator of a fatally injured employee might recover the beneficiary's pecuniary loss and also for pain and suffering endured by deceased between the moment of injury and final dissolution. We were careful, however, to say-( 655) 'But to avoid any misapprehension it is well to observe that the case is close to the border line, for such pain and suffering as are substantially contemporaneous with death or mere incidents to it, as also the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages under statutes like that which is controlling here.' And, referring to the two separate grounds of recovery-(658) 'Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person, and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries, and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong, but a single recovery for a double wrong.'
The present record presents the very circumstances which we declared afforded no basis for an estimation or award of damages in addition to the beneficiary's pecuniary loss. And although apparently not challenged in the state supreme court, and therefore not now to be [242 U.S. 144, 148] relied on as ground for reversal (Harding v. Illinois, 196 U.S. 78, 87 , 88 S., 49 L. ed. 394, 397, 398, 25 Sup. Ct. Rep. 176), in view of a possible new trial, it seems proper to point out that the method approved by the trial court for estimating damages where the deceased's cause of action does survive conflicts with the rule sanctioned by us in the Craft Case.
The judgment below is reversed and the cause remanded for further proceedings not inconsistent with this opinion.