The judgment of the court was pronounced by
Rost, J.The plaintiff alleges that her late husband, Jacob Hubgh, was employed, at a monthly salary, by the defendants to manage one of their locomotive steam engines, the boiler of which was, from age and great defects, unfit for use; that the said boiler exploded while her husband was in the discharge of his duty, killing him instantly; and that the immediate cause of his death was the gross negligence of the defendants in failing to provide a safe boiler for the engine.
The plaintiff avers her destitute condition in consequence of the death of her husband, and claims $10,000 damages, to be equally divided between her and her children.
The defendants filed a peremptory exception, that the petition sets forth no cause of action, and, in case the exception was overruled, they answered by a general denial, and an averment that if there was any fault or negligence, it was that of the deceased and not theirs. The exception was overruled and the case tried before a jury, who found in favor of the plaintiff $5000 damages. The defendants have appealed.
The exception of the defendants presents the question, whether the death of a human being can be the ground of an action for damages..
On general principles, the only private rights which laws recognize, and which constitutions are established to protect, are the rights of persons and the rights of properly. The plaintiff and her children, in this case, do not complain of wrongs to their own persons, and it cannot be pretended that they had any rights of property in their husband or father. It appears to us, therefore, that without a special statute authorizing such actions, they cannot be maintained. It is a strong argument in favor of this view of the law, that in a country where private rights are so well protected as they are in England, it is settled that those actions do not exist at common law. Baker v. Bolton et al., 1 Campbell, 493.
In 1st Cushing’s Mass. Rep. p. 475, a case similar to the present, the rule of the common law was re-affirmed; and the judge being of opinion that if the facts stated were proved, they would not entitle the plaintiff to recover: a verdict was entered in favor of the defendants. In England, of late years, this omission has been supplied by statute in a limited class of cases. 9 and 10 Victoria, c. 93.
It is urged that, under the civil law, the present action can be maintained. But the plaintiff’s counsel have not favored us with any authority from the Roman or Spanish law sustaining the position they assume. On the contrary, it is a general rule under those systems, that actions for personal injuries are strictly personal. 24 Pothier Pandectes, p. 279, law 13. 7 Partida, tit. 15,1. 3.
It is further urged, that under art. 2294 of our Code, eveiy act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; that this article has enlarged the remedies given by the former laws in cases of damages arising from torts, and that the present action should be maintained under it. It cannot be denied, that the commentators of the same *497article in the Napoleon Code seem to favor that opinion, and that the Cotirt of Cassation has adopted it in two instances. Great as our deference is for that enlightened tribunal, we are unable to adopt their conclusions. The dispositions of art. 2294 are found in the Roman and Spanish laws; so far from being new legislation, that article embodies a general principle as old as the science of jurisprudence itself, and it must still be understood, with the limitations affixed to it by the jurisprudence of Rome uud Spain. Domat Lois Civiles, tit. Domages causes par des fautes, p. 180, parng. 1.
But if the action coukl be maintained, there are other grounds upon which the plaintiff cannot recover.
Conceding that the deceased was not entrusted with the repairing of the boiler, and that this care devolved upon the engineer of the corporation, some of the witnesses havo testified that the defects of the boiler wore such as to be plainly visible on the outside. If so, the deceased could not be ignorant of the existence of those defects. Notwithstanding this knowledge, he continued to run the engine; keeping the steam, as is shown, much higher than he was instructed to do, or than would have been safe even with a sound boiler. Aftor thus wantonly risking his own life and those of the passengers in the train, it is clear that ho could not recover damages himself, .if he was alive, lor any bodily injury sustained by the explosion. Tlio doctrine of the Court of Cassation, in the case cited from Sirey, that although the man who was killed in a duel could not, if he had only been wounded, have recovered damages for the injury, because he had exposed himself to the risk by which he was disabled, his widow could recover damages aftor he had been killed, will not bear the test of examination. In a pecuniary point of view, a wound, which would have rendered the deceased in this case a charge to his family during his whole life, would have inflicted on them a greater injury than his death. The decision relied on was undoubtedly made to discourage duelling. In that sense it may have been a good action, but, wo are compelled to say, that it was a bad judgment. 27 Sirey, p. 529.
If, on the other hand, the defects which rendered the boiler unsafe were not visible, and we believe they were not, there is another ground still more conclusive. The deceased was a servant of the corporation, and had charge of one of the locomotives. The engineer, another servant of the corporation, had charge of keeping the locomotives and their boilers in a proper state of repair. As a general rule, a master is ntit liable to one servant for damages resulting from the negligence of another. ■ In order to make the master liable in such a case, it is necessary to prove that the persons selected by him were habitually careless or unskillful. Priestley v. Fowler, 3 M. and W. 1.
The deceased and the engineer were engaged in a common service, the duties of . which imposed certain risks on each of them ; and in case of negligence on the part of the engineer, the deceased knew that that negligence was that of his fellow-servant and not of the defendants. He knew, when he engaged in their service, that he was exposed to the risk of injury, not only from his own want of skill or care, but also from the want of it on the part of his fellow-servant; and he must be supposed to have contracted on the terms that, as between himself and the defendants, he would run that risk. It is this implied agreement which excludes this case from the operation of' art. 2499, C. C.
The principle is, that a servant when he engages to serve a master, undertakes, as between him and his master, to run all the ordinary risks of the service; and tills' includes tho risk of negligenco on the part of a fellow-servant, wherever he *498is acting in discharge of his duty, as servant of him who is the common master of both.
Such is the language of the court in the late case of Hutchinson v. The York, Newcastle and Berwick Railway Company; and there can be no doubt that tho rule therein laid down is in strict accordance with legal principles. See also the case of Wigmore v. Jay, Law Reporter.
It is not pretended that the engineer of the corporation was unskillful or habitually negligent; but it clearly results from the evidence, that the deceased was himself guilty of negligence in continuing to run the engine, if, as alleged, the defects of the boiler were visible.
It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendants, with costs in both courts.