As the negligence of the company, found by the jury to have caused the death, as well as the resulting death, took place in ldaho, the plaintiffs' right of action rests on the statute of that state. What is the scope and meaning of that statute? The circuit court charged the jury:
'You are not to consider what was the duty of this carrier toward Mr. Adams who was killed, but the duty which the defendant owed to these plaintiffs; and the duty which they have the right to exact from the defendant in this case is the same duty which the defendant company owed to the public in general.'
In other words, although it should appear that the company in no respect failed in its duty to the deceased, it could yet be held responsible to the widow and son for the damages they suffered by reason of the death. But that is a misconception. Their right of action arises only when his death is caused by 'the wrongful act or neglect.' If there be no omission of duty to the decedent, his heirs have no claim. Suppose an individual is wantonly assailed, and, in order to protect his own life, is obliged to kill the assailant,-may the heirs of the decedent have that act of taking life, rightful as against the decedent, adjudged wrongful as against them, and recover damages from one who did only that which his duty to himself and family required him to do? The statute does not provide that when one's life is taken by another the heirs of the former may recover damages, but only when it is wrongfully taken,-that is, when it is taken in violation of the rights of the decedent; wrongful as against him. 'Neglect' stands in the same category with 'wrongful act.' It implies some omission of duty. The trial court in this case charged the jury:
'Negligence, to create a liability on the part of parties in fault, must be a failure to observe the degree of care and prudence that is demanded in the discharge of the duty which the person charged with the negligence owed under the peculiar circumstances of the case to the injured party.'
As stated in Pollock on Torts, p. 355, quoting from Baron Alderson in Blyth v. Birmingham Waterworks Co. 11 Exch. 784, 25 L. J. Exch. N. S. 213:
"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do,' provided, of course, that the party whose conduct is in question is already in a situation that brings him under the duty of taking care.'
The two terms, therefore,-wrongful act and neglect,-imply alike the omission of some duty, and that duty must, as stated, be a duty owing to the decedent. It cannot be that, if the death was caused by a rightful act, or an unintentional act, with no omission of duty owing to the decedent, it can be considered wrongful or negligent at the suit of the heirs of the decedent. They claim under him, and they can recover only in case he could have recovered damages had he not been killed, but only injured. The company is not under two different measures of obligation,-one to the passenger and another to his heirs. If it discharges its full obligation to the passenger, his heirs have no right to compel it to pay damages.
Did the company omit any duty which they owed to the decedent? He was riding on a pass which provided that the company should 'not be liable, under any circumstances, whether of negligence of agents or otherwise, for any injury to the person.' He was a free passenger, paying nothing for the privilege given him of riding in the coaches of the defendant. He entered those coaches as a licensee, upon conditions which he, with full knowledge, accepted. He was not a passenger for hire, such as was held to be the condition of the parties recovering in New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627, and Grand Trunk R. Co. v. Stevens, 95 U.S. 655, 24 L. ed. 535. In the first of these cases Mr. Justice Bradley, who delivered the opinion of the court, closed an elaborate discussion of the questions with these words:
'We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger instead of a passenger for hire.'