A judgment against the Railroad Company, in the sum of five thousand dollars was recovered, upon a count which reads as follows:
“That the said defendant on the 9th day of February, A. D. 1912, was operating as a common carrier a certain line of railroad between Pensacola, in the State of Florida, and Flomaton, in the State of Alabama; that on the said day plaintiff’s intestate was an employe of the said defendant, in its business as a common carrier in interstate commerce; that on said day the said defendant was operating and running an engine in charge of certain of its employes on its said line of railway at and near Flo*528matón, in the State of Alabama, and at or near the station called Flomaton on its said line of railway, and so carelessly and negligently ran and operated its said engine, that they ran it over, upon and against the said Clarence Rhoda, thereby so greatly wounding and injuring the said Clarence Rhoda, that he died from, and as a result of, the said injuries immediately upon their infliction; that at the time of the injury and death of the said Clarence Rhoda he was employed by the said defendant in interstate commerce and the said injury and death were inflicted upon him while he was performing the duties of such employment; that the plaintiff has been duly appointed as administrator of the estate of the said Clarence Rhoda, who left no widow nor children, but did leave surviving him, who still survive, his mother, Annie Patterson Rhoda, and his father, L. M. Rhoda. And the plaintiff alleges that by reason of the death of the said Clarence Rhoda he has sustained damages for which he here sues for the benefit of the parents of the said Clarence Rhoda, in the sum of Twenty Thousand ($20,-000) Dollars.”
The action is based squarely upon the Federal Employers Liability Act of 1908, as amended April 5, 1910, the said amendment being as follows: “That any right of action given by this Act to a person suffering injury shall survive to his or her personal representative for the benefit of the surviving widow or husband and children of such employee, and if none, then to such employee’s parents; and if none, then of the next of kin dependent upon such employee; but in such case there shall be only one recovery for the same injury.”
The plaintiff in error contends that as the death occurred “immediately” upon the infliction of the injury, no cause of action ever existed in the person suffering the *529injury, and therefore there was no cause of action to survive. The contention is not without authority in the decisions by certain State courts upon State statutes. The courts of Massachusetts at an early date so construed the statutes of that State, and in more recent times Mississippi, Iowa and other States. See Illinois Cent. R. Co. v. Pendergrass, 69 Miss. 425, 12 South. Rep. 954; Major v. Burlington, C. R. & N. Ry. Co., 115 Iowa 309, 88 N. W. Rep. 815. Judge Cooley in speaking to this point, says: “A question has also been made in some States whether suit could be maintained where the death was instantaneous; and in Massachusetts, under a somewhat nice and technical construction of the statute, it was decided that the action would not lie in such a case. But probably under no existing statute would it be so held now.” Cooley on Torts (3rd ed.) 551. Connecticut refused to follow Massachusetts, Murphy v. New York & N. H. R. R. Co., 30 Conn. 184, and also Broughel v. Southern New England Tel. Co., 72 Conn. 617, 45 Atl. Rep. 435, 49 L. R. A. 404.
The Supreme Court of the United States has not as yet construed this amendment to the statute directly, nor so far as we are advised lias any Federal Court. In Michigan Cent. R. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. Rep. 192, that court in a case arising before the amendment, declined to follow the Massachusetts Courts to the extent of holding that a few hours survival of the injury destroyed the right of action in the beneficiaries, and to this extent indicated that it would not destroy a right of action by a nice technical construction of a statute, intended primarily to strike down defenses theretofore existing in behalf of interstate carriers, in the killing or maiming of their employees.
It will be noted that the declaration alleges the death *530to have followed “immediately” which the Maine Court differentiates from the conception of “instantaneous” death. Sawyer v. Perry, 88 Me. 42, 33 Atl. Rep. 660. Few, if any, deaths may be correctly denominated as instantaneous. The vital spark is so tenacious, that it rarely, if ever, leaves the body the moment that fatal blow is inflicted, and if it survive that blow but a mathematical moment, why may it not be logically said that the cause of action for that moment existed in the injured individual, and if so, then the statute applies and the cause of action survives in the personal representative for the injury thus done. If this be technical reasoning, we are using it in reply to a technical argument, for surely no lawmaker intended to make the severity of a blow a defense to the evil aimed at.
The pleader’s use of the word “immediately” may serve a two-fold purpose. First, to show there was no intervening or mediate cause, and, secondly, to apprise the defendant that no claim would be made for physical suffering. We think the count stated a good cause of action.
At the trial the court charged the presumption of negligence from the act of injury done by the running of the locomotives or cars of a railroad company, under the local law. It is argued that this was error, upon the theory that the Federal Act controls, and that the Florida law has no application. If Section 3148 of the General Statues establish a liability against the railroads, the argument would be unanswerable; but despite the title given to the section, we think the uniform construction placed by this court, as well as by the Georgia court upon the same statute, conclusively shows that the section does not impose a liability, but asserts merely a rule of evidence, to be applied by the local courts. Consumers’ *531Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 South. Rep. 797; Richmond & D. R. Co. v. Mitchell, 92 Ga. 77, 18 S. E. Rep. 290. This rule of evidence whether based upon a statute or court decision, is founded upon that broader rule requiring the party most likely to possess the proof to produce it, or upon the theory that the instinct of self preservation presumptively rebuts the idea that the injury was self inflicted. The railroad companies, through their agents, have complete charge of the operation and equipment of their trains and track, subject only to regulation or supervision by the State, with ample means of investigation into the causes of accidents producing injury to others, while the person injured, or the representative of the person killed, can ascertain the facts only under serious handicap.
We are frank to say that in the case now before us, it is very doubtful if the plaintiff could have proven liability, without the aid of this local rule of evidence, but the admission does not affect the liability or unduly interfere with or impose local enlargement of an interstate common carrier’s liability to its employes.
We must apply our own rules of procedure and evidence, in the enforcement of a liability created or regulated by the Congress, except in so far as the Federal statute may interpose.
The court further charged the jury that the measure of damages, if the plaintiff recovered, would be the loss to the estate of the intestate, caused by the injury resulting in his death; that is, the amount he would probably have accumulated, reduced to its present money value. We find no fault in this. Under the amendment, as we construe it, without enlightenment on the subject from the final arbiter, the Federal Supreme Court, the administrator, in bringing the action, has the option to seek *532recovery either for the loss to the estate, as was here done, or for the loss to the beneficiary, the recovery in either case being for the latter’s benefit, but he cannot recover for both losses. If the liability of the intestate towards his parents indicated that their loss would probably be greater than the accumulations for himself, the administrator suing for their benefit might upon proper declaration of these facts recover the larger amount; on the other hand if nothing or little was contributed to the beneficiaries under the statute, the administrator could recover the larger amount by suing under the survivor-ship amendment.
We find no error, and the judgment is affirmed.
Shackleford, C. J., and Hocker, J., concur.