The only question presented in this case is whether, at a trial under an .indictment for causing the death of a passenger, based upon the provisions of the St. of 1874, c. 372, § 163, the want of due care on the part of the passenger killed is a defence to such indictment.
The first statute upon this subject was the St. of 1840, e. 80, which provided that, “ if the life of any person, being a passenger, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, steamboat, stagecoach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents, in this Commonwealth, such proprietor or proprietors, and common carriers, shall be liable to a fine, .... to be recovered by indictment, to the use of the executor or administrator, of the deceased person,” &c.
The St. of 1853, c. 414, subjected a railroad corporation to the same liabilities as the St. of 1840, e. 80, if from the same causes “the life of any person, not being a passenger or employee of such corporation, shall be lost, such person being in the exercise of due care and diligence,” &c.
In the General Statutes the provisions of the St. of 1840, c. 80, are reenacted, and so far as they relate to railroad corporations are contained in c. 63, § 97, and the provisions of the St. of 1853, o. 414, are reenacted in c. 63, § 98. So far as the provisions of the St. of 1840, c. 80, relate to persons, or corporations other than railroads, they are reenacted in the Gen. Sts. c. 160, § 34, relating to offences against the person.
In the revision and consolidation, in 1874, of all general acts relating to railroads, the provisions of the Gen. Sts. c. 63, *213§§ 97, 98, are as follows: “If by reason of the negligence or carelessness of a railroad corporation, or of the unfitness or gross negligence or carelessness of its servants or agents while engaged in its business, the life of any person being a passenger is lost; or the life of any person being in the exercise of due diligence, and not being a passenger or in the employment of such corporation, is lost; in either case, the corporation shall be punished,” &c. St. 1874, c. 372, § 163.
In comparing these different statutes, we are led to the conclusion that the Legislature designed to subject the defendant to the penalty for causing the death of a passenger, though such passenger might have been wanting in the exercise of due care. We cannot suppose that, in all these statutes and revisions, the omission to require due care from a passenger, and the express requirement of it from other persons, is without meaning, and that due care is required alike in both cases.
The statute was designed, in part, to impose a punishment for the carelessness of the defendant, or its servants; and, as stated in the opinion in Carey v. Berkshire Railroad, 1 Cush. 475, the penalty “ is doubtless to be greater or smaller, within the prescribed maximum and minimum, according to the degree of blame which attaches to the defendants, and not according to the loss sustained by the widow and heirs of the deceased.” Commonwealth v. Eastern Railroad, 5 Gray, 473. Commonwealth v. Boston & Albany Railroad, 121 Mass. 36. That one purpose of the Legislature was to punish the defendant is further indicated by § 164, following the section upon which the indictment in this case is based, which provides that, under certain circumstances, a railroad company shall be subject to a fine, recoverable by indictment, as provided in § 163, for an injury to a person not a passenger, “ unless it is shown that, in addition to a mere want of ordinary care, the person injured .... was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law; and that such gross or wilful negligence or unlawful act contributed to the injury.”
If the person whose negligence caused the death had been indicted for manslaughter, the negligence of the deceased would not have been a defence. Regina v. Longbottom, 3 Cox C. C. 439. Regina v. Swindall, 2 Car. & K. 230.
*214As we are governed in our construction of the statute in question by the comparative provisions of different statutes, it becomes unimportant to determine what construction the original statute of 1840, or its revisions, should receive, if the other statutes to which we have referred had not been passed, and little aid can be expected from the legislation or adjudications in other States or countries. Maine and New Hampshire are the only other States, so far as has come to our knowledge, in which the proceedings in similar cases are by indictment. The statute of Maine expressly requires that the deceased, though a passenger, should be in the exercise of due care. The statute of New Hampshire makes no distinction between passengers and other persons, not in the employment of the railroad company, and makes no allusion to the question of due care on the part of the person killed. The provisions for fine and its disposition are similar to those contained in our statute. The proceeding under this statute, though in the name of the State, is held to be substantially a civil proceeding to recover damages, and to be governed by the same rules, as far as practicable, as govern civil actions. State v. Manchester & Lawrence Railroad, 52 N. H. 528.
In England and in most of the States of the Union, a remedy in similar cases is given by statute to the personal representative of the deceased, to recover by civil action damages for the benefit of the widow, &c., and these statutes generally provide that the action may be maintained when the circumstances are such that the deceased, if he had survived, might have maintained an action for the injuries received.
Judgment on the verdict.