delivered the opinion of the court.
The amended declaration in this case, omitting the caption, is as follows:
“ The said plaintiff, Thomas Edwin Allaire, an infant of tender age, by Ada A. Allaire, his next friend, and Philetus Smith, his attorney, by leave of the court first had, for amended declaration, complains of the said defendants, both bodies politic and corporate, and doing business at the city of Chicago, in said county, under and by virtue of the laws of said State, in a plea of trespass on the case: For that, heretofore, to-witOn or about the 2d day of February, A. D. 1896, at and in the said city, said defendants were possessed of and using a certain building there situate as a hospital for the care, curing and treatment of sick persons, and of ladies therein, during the time before, at and after accouchment and parturition and until convalescence thereafter, and for the care, careful treatment and medical diligence in the safe delivery of infants in ventre de sa mere, all for hire and reward in that behalf. And the said Ada A. Allaire, then within ten days, as near as may be, for the natural birth of plaintiff, as the said defendants then and there well knew and had knowledge, then and there, on said last named day, at the request and solicitation of the said defendants, for hire and reward in that behalf to be paid by her, became and was a patient of said defendants in said building, therein to be carefully kept, cared for, housed and medically treated until the birth of plaintiff, and during her convalescence thereafter; and for such hire and reward so to be paid, then and there became and was such patient of defendants, for the use and benefit of plaintiff, in that he also should receive from said defendants all due care’ and treatment, and should be safely delivered by birth, in the course of nature, without personal harm.
And thereupon it then and there became and was the duty of defendants to carefully and comfortably house, shelter and keep the said Ada A. Allaire in said building, and to extend to and bestow upon her person great care and diligence before, during and after plaintiff’s birth. All this for the well-being of the said Ada A. Allaire, as also for the benefit of the plaintiff, to the end and purpose that he also should receive great and due care from said defendants and be naturally born of his mother without injury or harm to his person.
And the plaintiff further avers that before, on and after the day first aforesaid, at and in the said building, the said defendants were possessed of and using a certain elevator, so called, for the conveyance of patients therein through a shaft from one floor of said building to other floors therein; and the said Ada A. Allaire, then being such patient, as aforesaid, on said day last named, and in obedience to defendants’ request and direction so to do, entered into said elevator and upon the floor thereof, and then and there sat down upon a common, all-wooden chair on said floor, that had there been placed in its then position by defendants, tQ, be carried, and elevated thereon from the second floor of said building to the floor of the obstetrical department thereof above said second floor, she then and there being assured by defendants that it was and would be perfectly safe for her to be seated in said chair in its then position, to be carried upward in said elevator, and that no harm could come to her for so doing, defendants then and there well knowing that said Ada A. Allaire was then and there near to confinement for the natural birth of plaintiff.
And thereupon it became and was the duty of defendants to have and keep said elevator and shaft and each and every part thereof, in a proper, safe and secure condition, and to keep the said mother of plaintiff and the plaintiff, safely and without personal harm or injury in the use and enjoyment thereof, and to so place and condition the said mother therein and upon said floor and chair, as that neither she nor the plaintiff, then in ventre de sa mere, should in any way be injured or personally harmed while therein and being carried thereby to said floor above, whither the said mother was then and there directed by defendants. Yet the defendants did not, nor would regard their duty in that behalf, but on the contrary thereof, negligently and carelessly, at the place and on the day last named and when and while the said mother of plaintiff, with all due care on her part, was then and there so conditioned and seated in said chair and being rapidly carried upward in said elevator, failed and neglected to have and keep said shaft, elevator and chair in a safe and secure condition and position, and to have and keep the car of said elevator enclosed, and then and there, carelessly, negligently and heedlessly failed to properly load and operate said elevator, and did then and there so carelessly and negligently operate the same that when and while the said Ada A. Allaire was so being rapidly carried upward therein and thereon, the top of said chair, suddenly and with great force, struck a projection in and on the side of said shaft, whereby said chair, with said mother thereon sitting, was instantly and with great power, crushed to the floor of said elevator car, said car then and there being unenclosed and open, and said mother of plaintiff and the plaintiff then and there with great force and violence thrown and hurled from and off said chair to the floor of said car and to the edge of said floor opposite said chair, and by reason thereof and the swift upward motion of said elevator car, the left limb of said mother was then and there and thereby thrown and caught' between the edge of said floor and a projection in said shaft, and was then and thereby greatly cut, mangled, bruised, and the bones thereof broken, and said mother greatly and grievously bruised, hurt, jammed and wounded in her left hip, thigh, side and body, and other great personal injuries, by reason of said negligence of defendants, said Ada A. Allaire then and thereby received and sustained; and that said mother, by reason of her said personal injuries, and the manner, way and time in which the same were so received and sustained, was then and there put in great terror and fear that death was then for herself and plaintiff, then unborn. So that and thereby, and as the direct, proximate and natural cause of said injuries to his said mother, said plaintiff was then and there, and by reason of defendant’s said negligence, greatly injured, strained, bruised and wounded in his left limb, left side, left hip, left arm and left hand, so that at his birth on the 6th day of February, A. D. 1886, his left foot, left limb, left side and left hand were, and became, and hitherto have been, and still are, wasted, withered and atrophied, and his said foot smaller than natural by more than one-half, and made thereby to turn inward and the sole thereof upward, and his said limb shorter than natural by more than four inches, and his said hip, side and arm, by reason of said negligence and injuries, became and are made shrunken, atrophied and paralytic, and his said limb without flesh thereon, and from thence hitherto have so been and still are, and said plaintiff thereby greatly and sadly crippled for life, and in endeavoring to be cured and healed of his said injuries, has laid out and expended the sum of two thousand dollars ($2,000) and more (the said Ada A. Allaire having heretofore, for a valuable consideration, settled with the said defendants for, and released them from, all damages from said injuries to herself alone), to the damage of the plaintiff in the sum of fifty thousand dollars ($50,000), and therefore he brings his suit,” etc. '
A general demurrer was filed by the defendants, which was sustained by the court, and judgment was rendered for the defendants.
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 ? If the former, it would seem the action can be maintained; but if the latter, not, because, if part of his mother, the injury was to her and not to the plaintiff.
Appellant’s counsel has argued the case learnedly and with not a little industry, but has cited only two cases in which it was attempted to maintain actions involving the question presented here, namely: Dietrich, Administrator, v. Inhabitants, etc., 138 Mass. 14, decided in 1884; and Walker v. Great Northern Ry. Co., 28 L. R. (Ireland) 69, decided in 1891.
In the former case the facts were that the mother, when advanced four or five months in pregnancy, slipped and fell by reason of a defect in the highway, the consequence of which was a miscarriage. The plaintiff was alive when delivered, but was too little advanced infcetal life to survive its premature birth. The action was brought by the administrator of the deceased infant under a statute authorizing an- action for the benefit of the mother or next of kin.
The trial and Supreme courts both held that the action could not be maintained, the latter court saying: “ Taking all the foregoing considerations into account, and, further, that, as the unborn child was a fart of the mother at the time of the injury, any damage to it, which was not too remote to be recovered for at all, was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff’s intestate within its meaning.”
In Walker v. Great Northern Ry. Co., the statement of claim was, substantially, that Annie Walker, the mother of the plaintiff, while quick with child, viz., the plaintiff, became a passenger on the defendant’s railway and was so received by the defendant, and that the defendant so carelessly and negligently conducted itself in carrying said Annie Walker and in managing its railway, that the plaintiff was thereby injured, crippled and deformed. A demurrer was sustained to the statement of claim, all the judges concurring in the opinion that it was defective in not showing a contractual relation between the plaintiff and the railway company, but merely averring a contract between the mother of the plaintiff and the company. The question, however, whether such an action could be maintained by an infant, in its mother’s womb at the time of the alleged injury, could, under any circumstances, be maintained, was discussed elaborately and with great learning both by court and counsel. O’Brien, 0. J., after discussing the question, expressly declined to commit himself by an opinion, leaving it, as he said, “an open question” so far as he was concerned. Harrison, J., while basing his decision on the insufficiency of the statement of claim, says, in his opinion: “When the accident occurred, on the 12th June, the plaintiff was still unborn and had no existence apart from her mother, who was the only person whom the defendants contracted to carry on their line,” etc. Johnson, J., in his opinion says : “ As a matter of fact, when the act of negligence occurred, the plaintiff was not in esse, 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 this action.” Again, commenting on the claim of liability, the same learned judge says: “ 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 defendant and plaintiff at the time of 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 was not in esse in fact, and has only a fictitious existence in law, so as to render a negligent act a breach of duty.”
O’Brien, Associate J., in his opinion, says of the action: “ It is admitted that such a thing was never heard of before; and yet the circumstances which would give rise to such a claim must at one time or another have existed.” In Dietrich v. Inhabitants, etc., supra, the court say: “ But 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.” Appellant’s counsel substantially admits that there is no precedent for the action. While it is true that this is not conclusive that the action may not be maintained, yet, in view of the fact that, as said by Mr. Associate Justice O’Brien, similar circumstances must have before occurred, it is entitled to great weight, especially when the right to maintain the action is, to say the least, doubtful. Mr. Associate Justice O’Brien, in Walker v. Great ¡Northern By. Co., says: “The law is in some respects a stream that gathers accretions with time from new relations and conditions. But it is also a landmark that forbids advance on defined rights and engagements; and if these are to be altered, if new rights and engagements are to be created, that is the province of legislation and not decision.” In this we fully concur. That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, can not, we think, be successfully disputed. The doctrine of the civil law and the ecclesiastical and admiralty courts, therefore, that an unborn child may be regarded as in esse for some purposes when for its benefit, is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its-birth-.
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 lie.
The judgment will be affirmed.