the point in his brief that no proof was offered in support of the allegations referred to. But, as it is clear that the nonsuit was rightly granted, it is immaterial as to the ground upon which it was based. Whether the ground upon which the nonsuit was granted, therefore, viz., that the negligence which caused the accident, if there was any negligence, was that of a fellow-servant, is tenable, it is not necessary for us now to decide. As the plaintiff failed to make out his case in the particulars above referred to, the nonsuit was rightly granted, and the petition for new trial must therefore be denied.

Petition denied and dismissed.

DRYBURG v. MERCUR GOLD MINING AND MILLING COMPANY.

Supreme Court, Utah, December, 1898.

MASTER AND SERVANT

SUPPORT OF LADDER REMOVED BY FELLOW-EMPLOYEE - FELLOW-SERVANTS. — 1. Plaintiff, while in defendant's employ, fell from a ladder connecting an upper tunnel with a lower one, in consequence of the removal the same morning, without his knowledge, of waste supporting one of the uprights. The plaintiff had been at work in the upper tunnel four days, and the waste had been removed by Saunders, another miner, working in the tunnel twelve feet below, under instructions of the superintendent to remove waste therefrom. Plaintiff was at work forty feet from the ladder, and, when he fell, was going for a sledge hammer which he needed, and the only light at the ladder was his candle. Held, the court should have submitted the issue as to contributory negligence to the jury, under instructions defining the phrase, in view of the circumstances in evidence.

2. Section 1343, Rev. St. Utah, declaring: "All persons who are engaged in the service of such employer, and who while so engaged, are in the same grade of service and are working together at the same time and place and to a common purpose, neither of such persons being intrusted by such employer with any superintendence or control over his fellow-employees, are fellow-servants with each other; provided, that nothing herein contained shall be so construed as to make the employees of such employer fellow-servants with other employees engaged in any other department of service of such employer. Employees who do not come within the provisions of this section shall not be considered fellow-servants," - is a defini tion of the phrase "fellow-servants" which the legislature had the power to make. The court may explain its provisions to the jury in view of the evidence; but whether the plaintiff in this case and Saunders were working together at the time and the place of the negligence was an essential fact the jury should have been permitted to determine from the evidence before them. MINER and BARTCH, JJ., dissenting.

(Syllabus by the Court.)

APPEAL from judgment, District Court, Salt Lake County, in favor of defendant.

M. L. RITCHIE and BOOTH, LEE & GRAY, for appellant.

J. E. FRICK and WILLIAMS, VAN COTT & SUTHERLAND, for respondent.

The facts and points decided are stated in the syllabus by the

court.

Judgment reversed.

Opinion by ZANE, Ch. J.

NELSON v. SOUTHERN PACIFIC CO.

Supreme Court, Utah, December, 1898.

JURY COMMISSIONERS. - 1. The law fixing the time for the appointment of jury commissioners, as well as section 1306, Rev. St., providing for the selection of jurors by them, is directory as to time.

APPEAL.-2. Under section 9, art. 8, Const., an appellate court cannot review findings of fact further than is necessary to determine questions of law. STOCKMAN KILLED WHILE ON TOP OF CAR PASSING UNDER BRIDGE.—3. The question of negligence on the part of the appellant and contributory negligence on the part of deceased was properly submitted to the jury.

4. It was negligence on the part of the appellant not to maintain its snowsheds high enough for a person to pass beneath them safely while walking on top of the refrigerator cars; but if, for any reason, a shed of insufficient height was maintained, then the exercise of ordinary care requires the railroad company to give warning in some way, either by word or other proper method, of the train's approaching the same. to all persons whose duties expose them to danger because of the structure.

5. Evidence of what was usual and customary among stockmen as to going upon the tops of cars under the circumstances and conditions surrounding deceased when he was killed was properly admitted as tending to prove deceased simply in discharge of his duty, as indicated by a usage among stockmen known by railroad men, and not guilty of contributory negligence.

6. The written contract delivered to deceased by appellant, showing his right to be on the train as an attendant on sheep in transit, having been lost, it was competent to prove its contents by parol.

BARTCH, J., dissenting.

(Syllabus by the Court.)

APPEAL from judgment, District Court, Weber County, in favor of plaintiff.

MARSHALL, ROYLE & HEMPSTEAD, for appellant.

DAVID EVANS, L. R. ROGERS, and A. G. HORN, for respondent.

This was an action to recover damages in consequence of the death of Charles A. Nelson, caused, as alleged, by the negligence of the defendant in placing three refrigerator cars between the caboose and eleven cars loaded with sheep in charge of deceased and two other men, and in constructing and maintaining a snowshed so low that deceased was killed by it while passing over a refrigerator car from the sheep cars to the caboose, the refrigerator car being about eighteen inches higher than other freight cars.

The points decided are stated in the syllabus by the court.
Judgment affirmed.

Opinion by ZANE, CH. J.

BROWN V. CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

Supreme Court, Wisconsin, December, 1898.

ACTIONS FOR DEATH - STATUTE. — Actions for death losses are wholly statutory, and unless the right to surviving relatives is thus given does not exist. RIGHT OF ACTION FOR BENEFIT OF DECEDENTS' BROTHERS AND SISTERS. — A right of action for the benefit of a decedent's brothers and sisters is not authorized by Rev. St. 1898, sections 4255 4256, which provide that if the death of a person be caused by the wrongful act of another, under such circumstances that if death had not ensued such person could have recovered damages, such other shall be liable to an action for damages notwithstanding the death, prosecuted in the name of the personal representatives of the deceased person, for the benefit of the husband or widow of such person, if there be such surviving, otherwise for the benefit of such person's lineal descendants, or, in default of such descendants, such person's lineal ancestors.

RIGHT OF ACTION FOR DEATH SURVIVES. — Though the right of action conferred by the statute above noted is exclusive and limits the right to those for whose benefit it may be enforced, the cause of action survives to the personal representative in case of death under section 4253, which provides generally that actions for the recovery of damages to the person shall survive.

FROM an order of Circuit Court, Dane County, sustaining a demurrer to the complaint, plaintiff appeals.

Action to recover damages for a personal injury to August Zilmer, deceased, and also damages for his death. The complaint states all formal matters, and, in substance, that on the 29th day of August, 1895, at the incorporated village of Deerfield, in this State, at a crossing of defendant's railroad with a public street in such village,

August Zilmer was traveling on the street with due care, riding in a wagon drawn by a horse, and while so circumstanced defendant's servants caused one of its locomotives to approach and go onto and over the crossing at an unlawful rate of speed, to wit, forty miles an hour, without in any manner signaling such approach, whereby, without contributory fault of Zilmer, the locomotive struck his horse and wagon, and threw him with great force and violence on the ground, bruising and wounding him upon his head, body and limbs, thereby causing him to suffer great mental and physical pain, from the effects of which he on the same day died, to the plaintiff's damages in the sum of $5,000. The complaint further stated that the deceased left no wife, or father or mother or children, but left some brothers and sisters, and stated facts showing that a pecuniary loss was sustained by them by reason of his wrongful death, to the extent of $5,000. The defendant demurred generally to the complaint, which demurrer was sustained, and from the order accordingly. entered this appeal was taken.

BUSHNELL, ROGERS & HALL, for appellant. FISH, CARY, UPHAM & BLACK, for respondent. MARSHALL, J. (after stating the facts). Two questions are presented on this appeal: 1. Can brothers and sisters of one wrongfully killed recover damages from the wrongdoer to compensate them for the pecuniary loss thereby sustained? 2. Does a cause of action for damages to a person, because of an injury from the effects of which death ensues, survive to his administrator for the benefit of his estate? The decision of either of these questions in favor of the appellant must result in a reversal of the order appealed from. Actions for death losses sustained by surviving relatives are wholly statutory, and therefore, unless clearly thus given, do not exist at all. The subject in this State is covered by sections 4255, 4256, Rev. St. 1898, which provide that if the death of a person be caused by the wrongful act of another under such circumstances that if death had not ensued such person could have recovered of such other damages for his injury, such other shall be liable to an action for damages notwithstanding the death, such action to be brought and prosecuted in the name of the personal representative of the deceased person for the benefit of the husband or widow of such person if there be such surviving, otherwise for the benefit of such person's lineal descendants, or, in default of such descendants, such person's lineal ancestors. We are asked to hold that by such statutes the right of action for the wrongful death of a person is conditional only upon the circumstances being such that if death had not ensued the decedent could have proceeded against the wrongdoer for damages.

If the statute were susceptible of that construction, in any reasonable view of the language used, and we think it is not, the contrary view has been too long established as its true meaning to leave the matter open to question at this time. In Woodward v. Railway Co., 23 Wis. 400, decided thirty years ago, it was held that unless a person named in the statute as entitled to the benefit of a recovery when obtained, be shown to be in being by the allegations of the complaint, the calls of the statute are not satisfied and the action for damages for the death cannot be sustained. That is in line with the numerous decisions in this country and England where similar statutes exist, as abundantly appears in the opinion of the learned chief justice in the case cited, and the numerous authorities cited there by counsel. It has never been since questioned successfully in this court, but on the contrary has been repeatedly affirmed. Topping v. Town of St. Lawrence, 86 Wis. 526, 57 N. W. Rep. 365; Regan v. Railway Co., 51 Wis. 599, 8 N. W. Rep. 292; Gores v. Graff, 77 Wis. 174, 46 N. W. Rep. 48; Schmidt v. Wooden-Ware Co. (Wis.), 74 N. W. Rep. 797. The reasonableness of that construction is fully realized when one considers, as the fact is, that the action for a death loss to a surviving relative is not a right by survivorship to the claim which existed in favor of the injured person in his lifetime. If that right of action exist at all, it is for the benefit of the estate under the statute, to be hereafter considered under the second point made by appellant. The death loss act of the English statute (9 and 10 Vict. c. 93), commonly called "Lord Campbell's Act," and the various laws of a similar kind that have been modeled after it, gave a new cause of action unknown to the common law, for the benefit of certain designated classes of surviving relatives. Such relatives do not take the cause of action for damages to the deceased by transfer to them by operation of law, or otherwise, but are enabled by statute to recover the pecuniary loss to themselves caused by the wrongful taking off of the decedent, the continuation of whose life would have been beneficial to them. As was said by Mr. Justice Orton, in Topping v. Town of St. Lawrence, supra, the action accrues to the surviving beneficiary mentioned in the statute by reason of the death of the injured person caused by the wrongful act of another. It is strictly not proper to say that it is a cause of action which survives; it is rather a new action by sections 4255 and 4256, which can be brought, not for the benefit of the estate, but solely for the benefit of the beneficiaries named in the statute. Counsel's contention is that the liability is made absolute by section 4255, and therefore is not limited by the following section which designates who shall be the beneficiaries. As before indicated, that question VOL. V-17