Liability to indictment under the statute for death caused by the negligence of a street railway corporation is not confined to cases where the death is instantaneous. There is no such limit in express terms; nor does the fact that a civil action for damages lies, under another statute,- in favor of the legal representative, when the death is not instantaneous, justify the interpretation contended for. St. 1864, c. 229, § 37. Gen. Sts. c~ 127.
A common law action, surviving under the statute to the administrator, and an indictment under the statute, do not cover the same ground. In the former, damages for the personal injury to the deceased are alone recovered; in the latter, the purpose is to secure to the relatives some compensation for the loss to them, as well as to inflict some punishment for the offence. In one, damages are recovered by the legal representatives, which in the due settlement of the estate may never come to the relatives. In the other, the amount of the fine, within the limit named in the statute, is fixed by the court, and paid to the use of the widow and children in equal moieties, or to the next of kin, as the case may be. It is not important to consider now what effect, if any, proof of a judgment in a civil action, or a settlement with the *238party injured or Ms representative, wouM have upon the prosecution of an indictment for the same act of negligence. Read v. Great Eastern Railway Co. Law Rep. 3 Q. B. 555. It is enough that it was not necessary to allege, in tMs indictment, that the death was instantaneous ; and the motion to quash was therefore properly overruled. Bancroft v. Boston & Worcester Railroad Co. 11 Allen, 34.
It is claimed that the refusal of the court to rule at the trial as requested, on the question of due care and negligence, was erroneous. The case here, in the opinion of the court, falls within the case of Mulligan v. Curtis, 100 Mass. 512, for the evidence, although conflicting and of doubtful preponderance, is sufficient to justify the jury in finding that there was due care on the part of those having the custody of the child, and also that there was negligence on the part of the defendants. The whole or a part of the defendants’ evidence may have been discredited by them; and we must take the case as left by the Commonwealth.
There was certainly evidence which tended to show that the child went from home with the mother’s knowledge and consent, five minutes before the accident, in charge of a girl who had lived in the family, and who was of an age sufficiently mature to have the proper custody of it; that this girl was seen with the child, in the street, going towards the place of the accident, two minutes before it occurred, and when last seen was with the child half way across the street or avenue through which the cars passed, and wMch was there sixty feet wide, with two tracks for cars, and was both level and straight. This was evidence of due care, to be submitted to the jury with proper instructions. And as to the negligence of the defendants’ servants, it is enough that there was evidence that the attention of the driver of the car, who had charge of the brakes, was attracted from his duties, at the time, towards a fire wMch was burning in the neighborhood, so that he failed to stop the car.in time.
Exceptions overruled.