delivered the opinion of the court:
This was an action on the case commenced in the superior court of Cook county by the appellant to recover damages for the death of his intestate, William Frank, against appellee, as the owner and lessor of the Chicago and Western Indiana railroad, which railroad runs through the village of Burnham, in Cook county, and in which village William Frank resided with his father, Frederick Frank.
It appears from the evidence that on the evening of January 3, 1904, Frederick Frank and his sons, Robert and William, who were of the respective ages of ten and twelve years, were riding in a milk wagon drawn by one horse, upon Center street, in said village, and as the father drove upon appellee’s railroad track, which intersects said Center street, the vehicle in which they were riding was run over by a passenger train of the Chicago, Indianapolis and Louisville Railway Company, the lessee of said railroad, which passenger train was running at a high rate of speed. Robert Frank was not seriously injured. Frederick Frank died on the following morning from injuries received by him at the time of the collision, and William Frank was removed a few miles from the place of accident to a hospital situated in the city of Hammond, in the State of Indiana, where he died on January 23, 1904, from the effect of injuries received by him at the time of the accident.
The declaration contained six counts, each of which averred William Frank was injured through the negligence of appellee’s lessee railroad company within the limits of the State of Illinois, from the effect of which injury he died, but neither of said counts averred he died outside the limits of the State of Illinois. The general issue was filed, and at the close of all the evidence the appellee moved the court to instruct the jury to find the defendant not guilty. The grounds upon which the defendant asked the instruction directing a verdict in its favor were, that under the amendment of 1903 to the act entitled “An act requiring compensation for causing death by wrongful act, neglect or default” there could be no recovery, because' it appeared from the evidence the death of plaintiff’s intestate occurred outside of the State of Illinois: The court construed the said amendment to prohibit a recovery in this State because the death occurred in another State, and gave the instruction. The jury accordingly returned a verdict for defendant, upon which the court rendered judgment, and the plaintiff has prosecuted an appeal direct to this court, and has urged as grounds of reversal the following reasons: First, that the question whether the appellant could maintain an action in this State for the death of his intestate should have been raised by a plea in abatement; second, that section 2 of the act above referred to should be so construed as to permit a recovery in the courts of this State where the injury or wrongful act from which death resulted occurred in this State, although the party injured died, from the effect of such injury, outside the limits of this State; and third, that unless said section of the statute is so construed, that section of the statute is in conflict with the constitution of this State and the constitution of the United Sates in this: that it is class legislation. From the view we take of this case it will only be necessary to consider the second contention of appellant.
Our statute entitled “An act requiring compensation for causing death by wrongful act, neglect or default,” was adopted in 1853. Section 1 of the act reads as follows: “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have- been liable if death had not ensued, shall be Hable to an action for damages, notwithstanding the death of the person injured.” Section 2 directs in whose name and for whose benefit the action shall be brought, and fixes a limit of time in which the suit shall be commenced and the maximum amount that can be recovered. By an amendment the legislature, in 1903, added a proviso to said section 2, part of which reads as follows: “Provided further, that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State,” and it is the construction of this language in the amendment of 1903 that is here involved.
If the death were held to be the cause of action, then the amendment would have tó be construed as intended to prohibit the bringing of a suit in this State if the death occurred in another .State, although the unlawful act which caused the injury that resulted in the death may have occurred in this State. But the death is not made the cause of action by our statute. At' the common law no action could be maintained against any person or corporation causing the death of another by wrongful act, neglect or default. Our statute authorizing the maintenance of such an action was adopted in 1853, and the first section of it has never been altered or amended. By that section it is not the death, but the wrongful act, neglect or default which causes the death, that constitutes the cause of action. This was so held in Holton v. Daly, 106 Ill. 131, where it was said (p. 137): “The cause of action is plainly the wrongful act, neglect or default causing death, and not merely the death itself. Damages are recoverable, not for the killing, but, as was observed by Comstock, J., in Dibble v. New York and Erie Railroad Co., as quoted by him in his dissent in Whitford v. Panama Railroad Co. 23 N. Y. 486, ‘notwithstanding or in spite of the death which ensues. The statute recognizes but one cause of suit, and that is the wrong done, irrespective of its consequences.’ ” An injury resulting from the wrongful act, neglect or default of another gives the injured party, if he survives, a right of action, and if he dies, this right of action survives to his personal representatives under the statute. I11 either case the cause of action is the same. But in whose name and for whose benefit the action shall be brought depends upon whether the injury resulted in death, as may also the amount of recovery.
We are of opinion the proviso to section 2, from which we have quoted, was intended to be considered in connection with section 1 of the act of which it forms a part, and when so considered it must be construed to mean that no action shall be brought in this State to recover damages for a death where the wrongful act, neglect or default causing the death occurred outside of this State. To construe said proviso to mean that notwithstanding the wrongful act that caused the death occurred in this State, if the injured party was removed to another State before death resulted and there died from such injuries no action could be maintained 'in this State, would appear so absurd and contrary to the ends of justice that such construction should not be placed upon the language used unless it is so plain and unambiguous that it will admit of no other rational construction. In People v. City of Chicago, 152 Ill. 546, the rules by which courts should be governed in interpreting statutes were discussed and numerous authorities cited on the subject. It was there said (p. 552) : “When the literal enforcement of a statute would result in great inconvenience and cause great injustice and lead to consequences which are absurd and which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the ends of justice and avoid the absurdity.”
In this case the appellant’s intestate was injured by the wrongful act of the appellee’s lessee in this State, for whose wrongful act the appellee is responsible. William Frank was taken to a hospital just across the State line and died in the State of Indiana. Had he returned to this State and there died, it must be conceded his personal representatives could maintain this action. While the action could only be maintained in case of the death of William Frank, the wrongful act of the appellee’s lessee, and not the death resulting from such act, is the foundation of the action. We think it obvious that the object of the legislature in passing the provision of section 2 above referred to, was to prevent the bringing of actions in the courts of this State to recover damages for personal injuries resulting in death where the wrongful act causing it occurred outside of the limits of this State, and not to prevent the bringing of actions to recover' damages for personal injuries where the wrongful act, neglect or default took place in this State although the death occurred outside of the State.
We are therefore of the opinion the superior court erred in directing a verdict in favor of appellee, and the judgment will be' reversed and the cause remanded for a new trial.
Reversed and remanded.