This was an action on the case brought by Belford Slater, as administrator of the estate of Lewis W. Slater, deceased, against the Illinois Central Bailroad Company, to recover damages under the statute for causing the death o'f Lewis W. Slater, for the benefit of his next of kin. The defendant pleaded the general issue. A trial was had resulting in a verdict against appellant for $1,350,, upon which the court, after overruling motions for new trial and in arrest of judgment, gave judgment. Appellant now brings the record here on appeal, and assigns errors on the record and asks this court to reverse the judgment.
The errors assigned and relied upon are: 1. That this proceeding is barred by a trial and final judgment in former proceeding between the same parties concerning the same cause of action. 2. That the court erred in giving and refusing instructions. 3. That the verdict was against the instructions and the evidence. 4. The reception of imjiroper evidence and the refusal of proper evidence.
A brief statement of the facts out of which this suit arises is necessary to a correct understanding of it. Belford Slater was the father of Lewis W. Slater and Arthur B. Slater. At the time of the accident which resulted in the death of both the sons, Lewis W. was thirteen years old and Arthur B. about ten years old. On the 24th day of August, 1886, Belford Slater sent his two boys to the town of Polo, a short distance from their homo, with a two-horse wagon after a barrel of buttermilk and some sugar. The team they drove was a quiet one and one which the boys had been accustomed to drive and handle. They had frequently before driven the same team to town. On the morning in question these two hoys had driven to town and done their errand and were returning home. At about 11 o’ clock they reached the crossing of the public highway upon which they were traveling, with appellant’s railroad, and while attempting to cross the railroad track the passenger train on appellant’s road collided with the wagon and instantly killed both the boys. Separate suits were brought to recover for the death of each one. Belford Slater, the father, was appointed administrator of each of them. The declaration in each case seems to be exactly alike, except as to the names of the deceased. Each declaration names the same beneficiaries, being the parents and brothers and sisters of the deceased. The suit for cansing the death of Arthur B. was first tried. Upon the trial a judgment was recovered against appellant in the Circuit Court for §1,000. The case was brought to this court on appeal, and was affirmed, and is reported in the case of the Illinois Central Railroad Co. v. Bolford Slater, Adm’r, etc., 28 Ill. App. 73. The case was then taken to the Supreme Court on writ of error and there the judgment of the Appellate Court was affirmed. During the pending of that suit in the various courts this case was permitted to await the final result in that case.
The first count of the declaration in the case at the bar was as follows:
First count alleges that August 24, 1886, defendant possessed and operated railroad through county of Ogle over a public highway running east and west on section line between sections 4 and 9, T. 23, R. S. That Lewis W. Slater was then with all due care riding upon said highway in a wagon drawn by two horses, and with all due care and caution came upon said railroad at said crossing, and while so riding with all due care across said railroad, at said crossing upon said highway, in said wagon there, defendant then and there, by its servants, so carelessly and improperly drove and managed its locomotive engine and train by running the same at a high and dangerous rate of speed, and by failing to keep a proper watch for persons about to pass over said crossing, or to give such signals as would apprise such persons using due care of the approach of said locomotive engine and train, and by failing and neglecting to stop or endeavor to stop said engine and train so as to prevent injury to said Lewis W. Slater upon said crossing, that by and through said negligence and improper conduct of defendant in that behalf, said engine and train then and there struck said wagon, and said Lewis W. Slater was then and there thrown out of said wagon with force and violence and against said engine, and was thereby then and there killed; that said Lewis W. Slater loft surviving Belford Slater, his father, Ruth A. Slater, his mother, Albert G. Slater, Willis A. Slater and Roy J. Slater, his brothers, and Sarah H. Slater. lxis sister, and next of kin, who have been deprived of their means of support and sustained damages.
As before stated the declaration in the other case was in all respects the same, with the difference in the names of the deceased only. It will thus be seen that the two actions are as near identical as it is possible for them to be. The parties in both cases are the same. The beneficiaries are the same and the facts in both cases out of which the cause of action arose are the same.
It will thus be seen that the question as to whether this suit is barred by a final judgment in the other is fairly raised, by the conceded and admitted facts, and as clearly shown by the record in the two cases. When the case was before us before, it was earnestly contended that the evidence did not support the verdict upon the charge of negligence on the part of the defendant and due and proper care on the part of the deceased child, Arthur B. Slater. We then gave the evidence a careful and attentive study, and while it was conflicting, still it was not so against the weight of evidence as to justify us in saying the jury had erred in their conclusions. The evidence in the present case we think is not substantially different from what it was in the other case. How, as then, it was sharply conflicting upon the material and vital questions involved, and we can notsay the jury were not justified in their finding. If they believed the witnesses for the appellee then there was enough evidence to support their finding, and we would not be justified in setting aside their verdict. They are the judges of the credibility of the witnesses and of the value of their evidence.
The question, however, pressed upon us with most earnestness by counsel for appellant, and with apparent confidence, is the supposed bar of the former judgment against the suit at bar. Whether this defense can now be made successful against this suit depends upon whether the two suits are in all their legal aspects identical with each other. If they are, then the bar is complete; but if the cases are not in legal contemplation the same, then that defense must fail. We are cited to a great many authorities by counsel for appellant upon the question before us and with which we have no contention. The rules of law which define and declare similar or identical causes of action between the same parties are so well-known and familiar that a discussion of them would be mere pedantry. The correct application of these well-known rules, however, to the ever-changing facts that present themselves for solution is not always so easy. Where an entire cause of action accrues growing out of a single act or tort, the person injured must sue for and claim all his damages in the first suit, and failing to do so, he will not be again' permitted to sue for and recover any more damages in a second suit growing out of the same act, to the same plaintiff and from the same tort feasor. But it is equally well settled that many causes of action may grow out of a single act or tort, to as many individuals as suffer damages by the wrongful act. We think the learned counsel for appellant in their very able and exhaustive argument fail to recognize this distinction and apply it to the case at bar. There is a broad and clear distinction between property in mere goods and chattels, and the rights that accrue from injury to them to their owners, and the rights that arise out of the death of a human being to those who are interested in the life and injured by the death of such person. Had two or a hundred horses been killed belonging to Belford Slater by this accident, then there would have been but a single cause of action, and all damages must have been recovered in the first suit, and the cases cited by appellant would have been applicable. But instead of horses, in which he had a right of property under the general law of the land, it was his two children, in which he had no right of property, while living (except to their services), nor in common law any right of property in them after death, nor any cause of action accruing to him or any one else by reason of their death caused by the wrongful act of another. The right to recover for the death of any person caused by the wrongful act of another is conferred by the statute, and is expressly limited by the terms of the statute to the widow and next of kin of the deceased person. The action must be brought by the personal representatives of the deceased persons. Sec. 1 and 2 Rev. Stat. (S. & C. Chap. 'TO, p. 1290). Under this statute, upon the death of Lewis and Arthur Slater (if caused wrongfully) a separate and distinct cause of action accrued to the administrator for the use of their kindred under the statute, not exceeding in value the sum of 85,000. By no law*or process of reasoning that we know anything of did the parents or brothers and sister of these two boys have any joint and inseparable interest in their lives while living, nor in the value of their lives when dead. The law treats human beings as individuals, whether living or dead, and treats their estates as separate and distinct, unless they have commingled and joined their own property in life, but even in that case each individual must have separate administrators; joint letters of administration of the estate of two or more persons, so far as we know or are advised, are wholly unknown under our law, and never have had any existence in this State and are not recognized by our statute. The estate of each person (except in partnership affairs) must have a separate administration. Two or more persons may die at the same time and from the same cause, and they may have the same administrator, and we may carry the parallel further and suppose their heirs to be the same persons, and yet the same administrator must take out separate letters on each estate and must give a separate bond in each case and the administration throughout must be separate.
The fact that Lewis and Arthur Stater were brothers did not make their estates joint in their death any more than if they had been entire stranger's to each other with their estates descending to different persons. Ror does the mere fact or accident that their father was administrator of both in the least degree aid in making the estate of his two children a joint estate, for any stranger might as well have been the administrator of one or both of them without in any wise changing the legal rights of the beneficiaries or the separate and distinct estates of each of the two boys. Had there been separate administrators here, it would hardly have been contended, we think, that the action of both must be joined, and yet the case as it is is not different, for the administrator does not sue in his own right; he is but the officer and agent of the law; his personal relation to the deceased has no legal significance whatever. Union Ry. & Transportation Co. v. Shacklet, 119 Ill. 232.
Under our statute this remedy accrues to the administrator only if the person when living would have been entitled to recover for the injury, had death not ensued, in his own right. How if we suppose that these two boys had suffered personal injury only from the act complained of, and that death had not ensued, it would hardly be contended seriously that they must join in an action to recover for such injury. On the contrary, it would be perfectly certain they could not join in such actions, and for the reason that the injury to each would have been his personal right of action, and it seems to us equally clear that the cause of action descended separately and distinctly for each one to his administrator, and that such separate and distinct cause' of action could not be joined by the administrator. We are, therefore, of opinion that the first suit and judgment therein was no bar to the present one.
It is also insisted that the court erred in refusing some of appellant’s instructions. On behalf of appellant the court gave the jury twenty-five instructions. We think after a careful examination of all these given, the appellant has no grounds for complaint. They seem to cover every possible phase of the case in a most ample and exhaustive manner, and we think the defendant had the full benefit of every legal proposition involved in the case clearly and distinctly declared to the jury by the court. The legal propositions arising upon the facts in the case are few and simple and we think they were all covered by the instructions given for appellant. The instructions given for the plaintiff seem to be the same as given on the other trial and were approved by this and the Supreme Court. A separate discussion of all the instructions would lead to too much prolixity. It is also objected that the court refused to prolong the trial and wait for the arrival of the witnesses appellant desired to examine, after the evidence was closed. Ho sufficiént reason is shown why the witnesses were not at the trial at the proper time and the court was not bound to wait for absent witnesses, after the evidence was closed. It was a matter in the discretion of the court.
It was also alleged as error that the court improperly refused several instructions asked by the defendant. The court refused Nos. 18, 21, 25 and 27, 35, 36 and 37. These instructions, we think, are open to the objection that they state to the jury that the existence of certain facts therein named, if shown by the proof, amount to acts of negligence on the part of the deceased, or to the exemption from the charge of negligence on the part of the engineer, instead of leaving it to the jury to say whether such acts or facts, if shown by the evidence, established the charge of negligence against the deceased or exonerated the engineer from the charge of negligence. The existence and proof of negligence is one of fact and not of law, and instructions which find and declare negligence from the existence of certain acts or facts usurp the function of the jury, and are therefore erroneous. Penn. R. R. Co. v. Frana, 112 Ill.398. This rule has a single except tion, and that is where the negligent act charged is so gross and palpable that the law will treat it as negligence per se. But in such case the negligent act must be so clear and conclusive that no rational argument could be made against it. The alleged acts of the negligence on the part of the deceased in this case does not fall within that exception. But while the court refused appellant’s 18th and other instructions defining what acts would relieve the engineer from the charge of negligence, the court gave the 19th, covering the same principle. And to the same effect are a number of the other instructions given on motion of appellant. The 21st, 25th, 27th, 35th and 36tli instructions were properly refused for the same reason. The 27th instruction was rightfully refused because it referred only to the fractious character of the team in running upon the track, without any reference to the alleged negligence of the defendant in running its train, and makes the whole case depend on whether the team became unmanageable and ran upon the track. The 37th instruction was properly refused because it told the jury that the former suit, brought for the death of Arthur B. Slater, was a bar to this action, which we have heretofore held is not the law.
It is lastly urged that the court erred in permitting certain witnesses to testify for appellee that they did not hear a bell rung nor a whistle sounded, and that in their opinion if such bell had been rung or whistle sounded they could and would have heard them. This was not error. This class of evidence is expressly recognized and held proper in Railroad Co. v. Siltman, 88 Ill. 529, and Chicago & Alton R. R. Co. v. Dillon, 123 Ill. 570.
After a patient and careful study of this entire record we have been unable to find any substantial or reversible error, and the judgment must be affirmed.
Judgment affirmed.