While the opinion of my brother Merrell is very persuasive and his humanitarian views enlist my sympathy, I am of the opinion that this, action is'not maintainable at common law. If desirable that there should be conferred upon the unborn infant the actionable right to recover for' damages occasioned by negligence while en ventre sa mere, there must be legislation to that effect — as there was created by Lord" Campbell’s Act * the right to recover damages for negligently causing the death of a human being — a right also unknown to the common law. It is admitted that there is no recorded case establishing this right of action. In Nugent v. Brooklyn Heights R. R. Co. (154 App. Div. 667), quoted from in the prevailing opinion, while Mr. Justice Thomas argued strenuously for the existence of the right it was nevertheless denied in that case on the ground that there was no contract between the carrier and the child. There an unborn infant had suffered injury from an accident to its mother, a passenger on a car, *708caused by the negligent starting thereof while she was in the act of alighting therefrom. The court said: “ This is an action for negligence, for violation of defendant’s duty as a carrier, and the defendant cannot be judged as a trespasser. Negligence is culpable failure to observe a duty owed by one to another in a particular relation, and remedy is allowed for injury therefor. What duty did the defendant as a carrier owe the unborn child? The child in its distinct entity was not a passenger, and the company owed it as a separate person no duty in the matter of safe carriage. Had it, born, been carried in its mother’s arms, it would have been a gratuitous passenger, but the carrier’s duty towards it would not have been thereby lessened.”
I cannot follow the reasoning which would allow an action if the mother had not been a passenger and denies it because she was. The action is based, not upon the contract of carriage, but upon the tort. (See Duncan v. St. Luke’s Hospital, 113 App. Div. 68; affd., on opinion below, 192 N. Y. 580.) If the unborn child is a distinct entity, if it is entitled to recover for injuries caused by negligence, I fail to see that it is not as much entitled to recover from the carrier under its obligation to carry safely as it would be from the owner of property abutting on a street with a coal hole in the sidewalk so negligently constructed or maintained that the mother in passing over, fell in and was injured as well as the child. There was a failure of duty to maintain a safely covered coal hole. The child did not independently cross it and fall, but the mother who carried it did. If action lies in the assumed case, which is that at bar, I fail to see why it did not in the Nugent case. In each case the gravamen of the action was negligence, a failure of duty owed.
The right to recover was denied in Dietrich v. Northampton (138 Mass. 14) where a premature birth and subsequent death of the infant was caused by the mother slipping by reason of a defect in defendant’s highway. Mr. Justice Holmes, writing the opinion of the Supreme Judicial Court, said: “ No case, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it while in its mother’s womb.”
In Allaire v. St. Luke’s Hospital (184 Ill. 359), where an *709unborn infant received injuries when its mother was negligently hurt during carriage in the defendant's elevator, it was decided that the action could not be maintained. The court said: “ The action is not given by any statute, and if maintainable it must be so by the common law, and, therefore, the question is whether, at common law, the action can be maintained. Had the plaintiff at the time of the alleged injury, in contemplation of the common law, such distinct and independent existence that he may maintain the action, or was he in view of the common law, a part of his mother ? ” After reviewing the cases and stating that the right of action did not exist under the common law the court proceeded: “ If the action can be maintained, it necessarily follows that an infant may maintain an action against its own mother for injuries occasioned by the negligence of the mother while pregnant with it. We are of opinion that the action will not he.”
In Walker v. Great Northern R. Co. (28 L. R. Ir. 69), cited in the prevailing opinion, Johnson, J., said: “ As a matter of fact, when the act of negligence occurred the plaintiff was not in esse, and was not a person, or a passenger, or a human being. Her age and her existence are reckoned from her birth and no precedent has been found for action. * * * This imputed existence in esse of an unborn child is a fiction of the civil law, which regards an unborn child as born for some (not for all) purposes connected with the acquisition and preservation of real or personal property * * *. As the civil law prevailed in the Ecclesiastical and Admiralty courts, and also entered largely into the jurisprudence administered in the Court of Chancery, most of the authorities by which an unborn child is for its own benefit regarded as born is to be found in the decisions of those courts. * * * The present is and always was a common-law action for personal injuries caused by the • negligence or breach of duty of the defendants, and it lies on the plaintiff to show what was this duty of the defendants towards the plaintiff and how it arose. Negligence and duty are respectively relative, not absolute, terms. It is not contended that the duty arose out of contract * * *. If it did not spring out of contract it must, I apprehend, have arisen (if at all) from the relative situation and circumstances of the defendants and plaintiff at the time *710of the occurrence of the act of negligence. But at that time the plaintiff had no actual existence; was not a human being; and was not a passenger — in fact as Lord Coke says the plaintiff was then pars viscerum matris, and we have not been referred to any authority or principle to show that a legal duty has ever been held to arise toward that which is not in esse in fact and has only a fictitious existence in law so as to render a negligent act a breach of that duty.”
In Gorman v. Budlong (23 R. I. 169) where a ceiling through negligence fejl upon a tenant with an unborn child, whereby a premature birth and subsequent death of the child ensued, the court said: “ Inasmuch as to enable the plaintiff to recover, the act, neglect or default must have been such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, the question at once presenting itself is, can one maintain an action for injuries received by him while in his mother’s womb. The plaintiff has prepared an ingenious brief and lays great stress upon the acts an unborn child can do, citing many authorities and seeking an analogy to reach the conclusion to- which he would have the court arrive. ' Unquestionably, an unborn child has many rights and privileges, but it matters not what rights and privileges it has if it had not the right, had it lived, to maintain an action for the injury alleged to have been suffered in this case.” And concluded: “ In our opinion one cannot maintain an action for injuries received by him in his mother’s womb.”
In Buel v. United Railways Co. of St. Louis (154 S. W. Rep. 71), decided as late as 1913 by the Supreme Court of 'Missouri, the court said: “ We have not been able to find any precedent at common law establishing the right of a child injured while en ventre sa mere, but subsequently born alive, to bring an action thereafter for the injuries so received * * * although there must have been many occasions in the progress of society where a basis for such a suit existed if it had been .thought to be maintainable,” and sustained the demurrer.
In the foregoing cases all of the authorities cited in the prevailing opinion were considered, and, notwithstanding the numerous decisions in which for certain purposes an unborn *711child is considered to be in existence, the basis of such holding was pointed out to be in the civil, ecclesiastical or admiralty-law, and it was distinctly held that they furnished no authority for an action at common law for injuries caused by negligence to the unborn child. Thus with no cases in favor of the proposition here advanced, and the foregoing authorities from many jurisdictions to the contrary, we are asked to decide that this is a common-law action. I agree that the common law is flexible and progressive, adapting itself to the changing conditions of our common life, applying old principles to modern facts, extending the law governing stage coaches to railroads, accepting the telegraph, the telephone and the wireless, the change from horses to gasoline, and so through the wide field of invention and development. But the carriage of children en ventre sa mere is no new condition. It is as old as humanity itself, and to apply to that venerable and immutable fact the doctrine of adaptability to changed conditions does not appear to me to be logical. Through all the centuries of the common law no such action has been sustained. This is conclusive proof to my mind that such right of action never did and does not now exist. The appeal to establish it must be made to the Legislature and not to the courts.
The order appealed from should be reversed and the motion of the defendant for judgment on the pleadings granted, with ten dollars costs and disbursements.
Page, J., concurs.
Order affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of said costs and ten dollars costs of motion at Special Term.
See 9 & 10 Viet. chap. 93; Laws of 1847, chap. 450, as amd. by Laws of 1849, chap. 256, and Laws of 1870, chap. 78; now Code Civ. Proc. § 1902 et seq., as amd.— [Rep.