382 Appendix.

ployee had not been an employee of nor in the service of the em-

ployer, nor engaged in its work.

And in case such death is not instantaneous, or is preceded by

conscious suffering, said legal representatives may in the action

brought under this section, except as hereinafter provided, also

recover damages for sucli death. The total damages awarded

hereunder, both for said death and said injury, shall not exceed

five thousand dollars, and shall be apportioned by the jury be-

tween the legal representatives and the persons, if any, entitled,

under the succeeding section of this Act, to bring an action for

Instantaneous death. If there are no such persons, then no

damages for such death shall be recovered, and the damages, so

far as the same are awarded for said death, shall be assessed with

reference to the degree of culpability of the employer herein, or

the person for whose negligence he is made liable.^

A car in use by or in the possession of a railroad company

shall be considered a part of the ways, or machinery of the com-

pany using or having the same in possession, within the meaning

of this Act, whether such car is owned by it or by some otlier

company or person. ^

One or more cars in motion, whether attached to an engine or

not, shall constitute a train within the meaning of this Act.^

Any person who, as a part of his duty for the time being,

physically controls or directs the movements of a signal, switch

or train shall be deemed to be a person in charge or control of a

signal, switch or train within the meaning of this Act.^

В§ 2. Where an employee is instantly killed, or dies without

conscious suffering, as the result of the negligence of an employer,

or of the negligence of any person for whose negligence the em-

ployer is liable under the provisions of this Act, the widow of the

deceased, or, in case there is no widow the next of kin, provided

that such next of kin were at the time of the death of sucli em-

ployee dependent upon the wages of such employee for support,

may maintain an action for damages therefor, and may recover in

the same manner, to the same extent, as if the death of the de-

ceased had not been instantaneous, or as if the deceased had con-

sciously suffered.

1 This paragraph was added by St. 1892, c. 200.

2 This paragraph was added by St. 1893, c. 3.')9.

• This paragraph was added by St. 1897, c. 491.

employers' liability act. 383

В§ 3. Except in actions brought by the personal representatives

under section one of this Act to recover damages for both the in-

jury and death of an employee, the amount of compensation re-

ceivable under this Act in cases of personal injury sliall not

exceed the sum of four thousand dollars. In case of death which

follows instantaneously or without conscious suffering, compen-

sation in lieu thereof may be recovered in not less than five hun-

dred and not more than five thousand dollars, to be assessed with

reference to the degree of culpability of the employer herein, or

the person for whose negligence he is made liable ; and no action

for the recovery of compensation for injury or death under this

Act shall be maintained, unless notice of the time, place, and

cause of the injury is given to the employer within sixty days,

and the action is commenced within one year, from the occur-

rence of the accident causing the injury or death. The notice re-

quired by this section shall be in writing, signed by the person