Opinion
March 7, 1906.
John T. Badger, for the appellant.
R.M. Moore, B.W. Berry and C.A. Burke, for the respondent.
If Hodge (the decedent) had survived he could not recover against the defendant for an injury caused by the negligence of its servants. ( Poucher v. N.Y.C.R.R. Co., 49 N.Y. 263; Bissell v. N.Y.C.R.R. Co., 25 id. 442.) The cause of action for causing death by negligence is given by section 1902 of the Code of Civil Procedure, and is given only against a person "who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued."
In Northern Pacific Railway Co. v. Adams ( 192 U.S. 440), where the Idaho statute gave a cause of action "against the person causing the death" and contained no provision similar to the one above quoted from our statute, it was held that the company was not liable to the estate of a person killed by the company's negligence, where he was riding on a contract which provided that the company should not be liable for any injury to his person. The same rule has been applied in this State. ( Bissell v. N.Y.C.R.R. Co., supra; Perkins v. N.Y.C.R.R. Co., 24 N.Y. 196.)
The judgment and order are, therefore, reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed, and new trial granted, with costs to appellant to abide event.