Chapter LXXII: Section 3761: A father, or, in case of his death or imprisonment or

desertion of his family, the mother, may prosecute as plaintiff an
action for the expenses and actual loss of service resulting from the
injury or death of a minor child.

Footnote 241:

Southern R. Co. _v._ Shipp, 169 Ala. 327; Nashville Lumber Co. _v._
Busbee, 100 Ark. 76 _Accord_. See Macdonald _v._ O’Reilley, 45 Or.
589. In Warren _v._ Street R., 70 N. H. 352, 362, PIKE, J., said: “The
child’s cause of action survived by reason of the statute, and the
money recovered in it will be assets in the hands of its
administrator, to be distributed in accordance with the special
provisions of the statute. If the father’s negligence barred his right
to recover in this action, there would seem to be no reason why it
would not bar him from recovering any property of the child which he
might inherit under the general provisions relating to descent and
distribution, but this is not claimed to be and is not the law.”

Footnote 242:

Lee _v._ New River Coal Co., (C. C. A.) 203 Fed. 644; Chicago R. Co.
_v._ Logue, 158 Ill. 621; True _v._ Woda, 201 Ill. 315; Gibbons _v._
Williams, 135 Mass. 333; Tucker _v._ Draper, 62 Neb. 66; Davis _v._
Seaboard R. Co., 136 N. C. 115; Scherer _v._ Schlaberg, 18 N. D. 421;
Bamberger _v._ Citizens’ R. Co., 95 Tenn. 18; Palmer _v._ Oregon R.
Co., 34 Utah, 466; Ploof _v._ Burlington Traction Co., 70 Vt. 509;
Vinnette _v._ Northern R. Co., 47 Wash. 320; Gunn _v._ Ohio R. Co., 42
W. Va. 676 _Accord_.

“The right of recovery and measure of damages are different from what
existed in the intestate. This right of recovery did not exist at
common law. It is wholly given by the act. It is not an act to cause
to survive a right of recovery which otherwise would be taken away by
the death of the injured.... Hence the contention that the recovery is
in the right of the intestate, and can be defeated only by his
contributory negligence, cannot be sustained.... From a very early day
the common law has denied a recovery, as unjust, to a party whose
negligence has contributed to the accident causing the injury for
which he demands damages. All statutes conferring a right of recovery
of damages, especially when in terms they give such damages only as
are _just_, must be read and considered with reference to this
universal principle of the common law.” Ross, C. J., in Ploof _v._
Burlington Traction Co., 70 Vt. 509, 516, 517.

“Shall the state say to the father, ‘If you know that your child is in
danger of injury from the negligence of others, you are under no legal
obligation to protect it from such injury, and if you allow the child
to be killed, you may recover, from one who is equally at fault with
yourself, for any pecuniary injury you may suffer by reason of the
death?’ No such meaning can be derived from the statute.” SEDGWICK,
C., in Tucker _v._ Draper, 62 Neb. 66, 67.

See Wigmore, Contributory Negligence of the Beneficiary as a Bar to an
Administrator’s Action for Death, 2 Illinois Law Rev. 487.

As to recovery where third person is administrator and there is
negligence on the part of the sole beneficiary or all the
beneficiaries, see: Toledo R. Co. _v._ Grable, 88 Ill. 441; Feldman
_v._ Detroit R. Co., 162 Mich. 486; Davis _v._ Seaboard R. Co., 136 N.
C. 115; Wolf _v._ Lake Erie R. Co., 55 Ohio St. 517; Gunn _v._ Ohio R.
Co., 42 W. Va. 676. _Contra_: Wymore _v._ Mahaska County, 78 Ia. 396;
McKay _v._ Syracuse R. Co., 208 N. Y. 359.

As to recovery where some of the beneficiaries are negligent and
others not, see: Phillips _v._ Denver Tramway Co., 53 Col. 458; Love
_v._ Detroit R. Co., 170 Mich. 1; Wolf _v._ Lake Erie R. Co., 55 Ohio
St. 517; Darbrinsky _v._ Pennsylvania Co., 248 Pa. St. 503.

Footnote 243:

See Broschart _v._ Tuttle, 59 Conn. 1; Dudley _v._ Northampton, 202
Mass. 443, 449.

Footnote 244:

The arguments are omitted.

Footnote 245:

Hinckley _v._ Penobscot, 42 Me. 89; Smith _v._ Boston R. Co., 120
Mass. 490 (injury to passenger travelling on train in violation of
Sunday law) _Accord_.

“The provisions of chapter ninety-eight of the Public Statutes
relating to the observance of the Lord’s day shall not constitute a
defence to an action for a tort or injury suffered by a person on that
day.” Mass. Acts 1884, c. 57, § 1.

Footnote 246:

The arguments are omitted; also that part of the opinion which relates
to the question of contributory negligence.

Footnote 247:

Atlanta Steel Co. _v._ Hughes, 136 Ga. 511 (plaintiff working on
Sunday); Black _v._ Lewiston, 2 Idaho, 276; Louisville R. Co. _v._
Buck, 116 Ind. 566 (plaintiff working on Sunday); Chicago R. Co. _v._
Graham, 3 Ind. App. 28; Schmid _v._ Humphrey, 48 Ia. 652; Taylor _v._
Star Coal Co., 110 Ia. 40 (plaintiff working on Sunday); City _v._
Orr, 62 Kan. 61; Illinois R. Co. _v._ Dick, 91 Ky. 434 (plaintiff
working on Sunday); Opsahl _v._ Judd, 30 Minn. 126; Corey _v._ Bath,
35 N. H. 530; Delaware R. Co. _v._ Trautwein, 52 N. J. Law, 169; Platz
_v._ City, 89 N. Y. 219; Mohney _v._ Cook, 26 Pa. St. 342; Baldwin
_v._ Barney, 12 R. I. 392; Hoadley _v._ International Paper Co., 72
Vt. 79 (plaintiff working on Sunday) _Accord_.

In Johnson _v._ Town of Irasburgh, 47 Vt. 28, the Supreme Court of
Vermont, while agreeing with the reasoning in Sutton _v._ Wauwatosa,
on the question of causation, nevertheless reached the same result as
in Bosworth _v._ Swansey, holding that the plaintiff was not entitled
to recover. This conclusion was arrived at upon grounds which were not
discussed in the above Wisconsin and Massachusetts cases. The very
able opinion of Ross, J., upon this point (47 Vt. 35–38), may be
summarized as follows:—

The liability of the town for the insufficiency of the highway is
purely statutory. The duty to travellers imposed by the statute is
only a duty to that class of travellers who have the right to pass, to
those who are legally travelling. The legislature did not intend to
impose a duty upon towns “in behalf of a person who was forbidden to
use all highways for the purposes of travel, and at a time when he was
so forbidden to use them. Can he be a traveller within the purview of
the statute who is forbidden to travel?” The duty and liability “are
co-extensive with the purposes for which persons can legitimately use
the highways, and no greater.” “The plaintiff when injured was
forbidden by law to use the highway, and by reason thereof the
defendant town owed him no duty to provide any kind of a highway, and
therefore was under no liability for any insufficiency in any
highway.”

Footnote 248: