DOLSON v. LAKE SHORE & MICHIGAN SOUTHERN RAIL- 1. RAILROADS-NEGLIGENT INJURIES TRESPASSERS - ASSUMPTION OF RISK. A servant of the consignee of a car load of stone, who, to the knowledge of the switching crew of the company, and in accordance with his custom, remains on the car, which he has commenced to unload, while it is being switched from its place and returned, does not become a trespasser in so doing, or assume the risk of the company's negligence in moving the car; and, if the car is shunted with such unneces sary force as to throw him therefrom, the company is liable for the resulting injury. 2. DEATH BY WRONGFUL ACT-PERSONAL INJURIES-SURVIVAL OF ACTIONS-REMEDIES. 3 Comp. Laws, § 10427, conferring a right of action for death by wrongful act or neglect, and section 10117, providing for the survival of actions for negligent injuries to the person, do not give a double remedy for the same wrongful act. Nor is the remedy under the latter section (the survival act) excluded by the fact that death ultimately ensued from the injury. On the contrary, such section applies wherever a cause of action accrued to the deceased in his lifetime; the former section (the death act), only where the death prevented such cause of action from vesting,-in other words, where the death was instantaneous. 3. SAME. Hence, where a decedent survived his injuries for some 12 hours, being conscious a part of the time, the remedy of his administrator was under the survival act, and not under the death act. MONTGOMERY, C. J., and MOORE, J., dissenting, being of opinion that an action could be maintained under both statutes. Error to Jackson; Peck, J. Submitted December 7, 1900. Decided October 22, 1901. Case by Daniel Dolson, administrator of the estate of Daniel Dolson, Jr., deceased, against the Lake Shore & Michigan Southern Railway Company, to recover damages for negligent injuries to decedent, resulting in his death. From a judgment for plaintiff, defendant brings error. Reversed in part. C. E. Weaver (George C. Greene and O. G. GetzenDanner, of counsel), for appellant. Wilson & Cobb, for appellee. MONTGOMERY, C. J. This action is brought by Daniel Dolson, Sr., as administrator of the estate of his deceased son, Daniel Dolson, Jr., whose death occurred on the 3d day of October, A. D. 1898, under the following circumstances: Deceased and his half brother, James Davis, were engaged in unloading crushed stone from gondola cars standing on defendant's team track in the yards in the city of Jackson. The stone was owned by one Robert Lake, a business man of Jackson, and was being unloaded into wagons for him by Davis and deceased. There were three cars of this stone standing upon the track at the north end of the yard, at the usual place of unloading into wagons. Standing on the track next north of the stone. cars was a box car loaded with granite, and north of that a short distance, on the same track, was a car loaded with hoops. At the time of the accident, Davis and Dolson had unloaded the north car of stone, and about one-half of the middle car, beginning at the south end. These gondola cars are about 30 feet long, with boxes 3 feet high. About 11 o'clock a. m., yard brakeman French backed down from the south on the team track with an engine and four cars, and told Davis and Dolson that he wanted to take out the car loaded with granite that was on the track beyond them, and that he was going to pull out the stone cars, and for them to pull in their screen. French then coupled to the stone cars, and went south, pulling out the whole string, including the empty stone car and the car of granite. As was their custom, Dolson and Davis remained in the half-unloaded car. Dolson stood on the east side of the car, about six feet from the south end, leaning against the side of the car. Davis stood near the south end of the car, on the west side. This was about the position of the men at the time of the accident, a few minutes later. French took the whole train south and through the switch. The switch was then turned, and the train backed north on the main track. The car of granite and the empty stone car were cut off, and left on the main track, and the train again went south through the switch, which was again turned, and set for the team track. The train then backed north through the switch onto the team track, the train then consisting of the two stone cars in the rear, then four cars and the engine. After passing out onto the team track, the train being in motion, French cut off the two stone cars, and let them pass on to the north, at the same time saying to Davis to stop the cars where he wanted them. These two cars slowed The testimony is in up or stopped near the cattle-chute. conflict as to whether the cars did or did not come to a full stop. French, seeing that the two cars of stone were not going to run down the track far enough, signaled the engineer to kick them farther back. The engineer then went back with the engine and the four cars, and overtook the two cars of stone at or near the cattle-chute. Whether the stone cars had then come to a full stop or were still in motion is uncertain. The fact is, however, that the cars came together when the south end of the half-unloaded car was just opposite the cattle-chute. It is claimed on the part of plaintiff that the stone cars had come to a full stop, and that the engine and the four cars struck the south stone car with such great and unnecessary force that Dolson, who was standing back about six feet from the south end of the car, leaning up against and having hold of the side of the car with both hands, bracing himself, was thrown over the south end of the car between the two stone cars, and was run over by the south stone car. He was run over by the trucks under the north end of the south stone car, and, to all appearances, drew himself from under the car before the south trucks reached him. His injuries were such as to leave no hope of his surviving them, and he died about midnight of the same day, being a part of the time conscious. The declaration contained two counts; the one under the survival act, so called, and the other under the death act. A recovery was had under each count, in the sums of $1,200 and $800, respectively. The two principal questions argued are: First, whether plaintiff can recover at all; and, second, whether, if entitled to recover, he is entitled to maintain an action under both the survival statute and the death act, and, if not, under which one he is entitled to recover. The instruction of the circuit judge upon the first question was as follows: "The term 'negligence,' as used in this case, means a failure by the defendant to perform some legal duty it owed to the deceased at the time of the accident. It was the defendant's duty, when it determined to move the car on which the deceased was working, and switch it back to the place where it originally stood, if the defendant's agents who had charge of and performed that work knew that the deceased was standing on the car during the operation, to do the switching with such care and prudence as a reasonably careful and prudent man would exercise under the circumstances, and to run against the cars, on one of which the deceased was standing, with only such speed and force as was reasonably necessary for that purpose under the circumstances. It must be assumed that it was necessary to use some speed and force, or the result could not be accomplished. The defendant had the right to run against the stone cars with sufficient speed and force to move them into their proper positions. In doing so the defendant was performing an act necessary to be performed in the usual course of its business; and the deceased boy, when he chose to remain on the car during the operation, is chargeable with knowledge that the defendant would and must use such speed and force in running and switching the cars as was rea sonably necessary for that purpose, and to have taken the chances of any accident which might result from the use of that amount of speed and force. The use of such speed and force as were reasonably necessary, under the circumstances, to switch the cars, was lawful, and the defendant was not negligent in using it. And if the defendant ran its engine and connecting cars against the stone cars with unnecessary speed and force, the employment of such unnecessary speed and force was a negligent act, and constituted negligence, as charged in the first and third counts of plaintiff's declaration. The question, then, upon this branch of the case, for you to determine, is, Did the defendant use unnecessary force and speed, under the circumstances, in running its engine and connecting cars against the stone cars, upon one of which the deceased was standing at the time of the accident? This is a material proposition in the case, and I submit it to you as a question of fact, to be determined from the evidence bearing upon that subject." We think that, as applied to the facts of this case, this instruction was correct. Chadderdon v. Railroad Co., 100 Mich. 293 (58 N. W. 998); Illinois Central R. Co. v. Anderson, 184 Ill. 294 (56 N. E. 331). Upon the question whether plaintiff is entitled to recover under both the death act and the survival act, my views have undergone no change since writing the opinion in Sweetland v. Railway Co., 117 Mich. 350 (75 N. W. 1074, 43 L. R. A. 576). On the contrary, my views have been fortified by a re-examination of the cases. Since that case was decided, the supreme court of Wisconsin, in an able opinion, written by Mr. Justice Marshall, and concurred in by the entire court, has held that, under statutes similar to ours, the two remedies are given. Brown v. Railway Co., 102 Wis. 137 (77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579). In addition to the case of Hurst v. Detroit City Railway, 84 Mich. 539 (48 N. W. 44), cited in the Sweetland Case, our attention has been directed to the case of Hyatt v. Adams, 16 Mich. 180, the reasoning of which, in my judgment, supports the contention of plaintiff. The able opinion of Mr. Justice CHRISTIANCY can |