This action was brought in the court below, on behalf of the two minor children named, against the Northern Pacific Railway Company, which is the plaintiff in error here, to recover damages alleged to have been sustained by reason of the alleged death of their father, H. A. King, which the complaint averred resulted from injuries received by him while attempting to board a passenger train of the plaintiff in error at its station called Taft, in the state of Montana. During the progress of the trial Mrs. King was joined as a party plaintiff.

*914 The negligence charged in the complaint against the railway company was the alleged sudden starting of its train from the station, without giving H. A, King, who had purchased a passenger ticket from the company’s agent at Taft, sufficient time to get upon the train, and in permitting snow and ice to remain between the front of its depot and its tracks at that station, thereby making it dangerous for passengers to attempt to board the trains of the company at that point.

The alleged-serious injury of H. A. King in his attempt to board a train of the company at Taft station was not denied by the defendant company in its answer; but it did therein expressly deny his alleged death, and also put in issue each of the allegations in respect- to negligence on its part, and pleaded affirmatively that the injuries sustained by King at the time in question were the result of his own negligence in attempting to board a moving train.

Inasmuch as the action was founded on the alleged death of King, in respect to which alleged fact issue was taken by the .defendant company, the burden of proving his death was, of course, upon the plaintiffs. It is quite true that the fact of one’s death may be proved by circumstantial evidence, provided the facts and circumstances going to show such death be sufficiently strong. We so held in the case of The San Rafael, 141 Fed. 270 , 72 C. C. A. 388 , and the Supreme Court so held in the case of Fidelity Mutual Life Association v. Mettler, 185 U. S. 308 , 22 Sup. Ct. 662, 46 L. Ed. 922 .

It is also true that under some circumstances the fact of death, as well as of birth, marriage, pedigree, and the like, may be proved by hearsay evidence. “Rrom necessity, in cases of pedigree,” said the Supreme Court in the case of Stein v. Bowman, 13 Pet. 207, 219 , 10 L. Ed. 129 , “hearsay evidence is admissible. But this rule is limited to the members of the family, who may be supposed to have known the relationship which existed in its different branches. The declarations'of' these individuals, they being dead, may be given in evidence to prove pedigree; and so is reputation, which is the hearsay of those who may be supposed to have known the fact, handed down frpm one to another, evidence. As evidence of- this description must vary by the circumstances of each case, it is difficult, if not impracticable, to deduce from the books any precise and definite rule on the subject. Tt is not every statement or tradition in the family that can be admitted in evidence.’ The tradition must be from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and that they could not be mistaken.”

It has been held by many courts that the death of an individual, though disconnected with any question of pedigree, and for whatever purpose sought to be established, may be proved by hearsay, subject to the same restrictions that are applicable to cases where matters of pedigree are involved; but no. case has-been cited, and we know of none, which holds that under circumstances like those here presented, it is. competent to prove the. basic and controverted *915 fact by hearsay testimony, pure and simple. Here the accident resulting in the injury of H. A. King had but recently occurred, and whether or not it resulted in his death was susceptible of easy proof. The record shows that the accident resulted in the amputation of one of his legs, that he received other injuries about his body, and that he was taken from Taft station to a hospital at Wallace, Idaho, by the witness Austin, who was questioned and answered on the trial, among other things, as follows:

The witness Lynch was also permitted, over the objection and exception of the defendant, to give hearsay testimony of the death of H. A. King, as follows:

If it be true that King died as the result of the injuries received by him, certainly the fact could have been easily shown by his attending- physician, or by the hospital attendants, or the undertaker, or by other direct evidence. Instead, the plaintiffs seem to have been content to introduce, over the objection and exception of the defendant, the statement of third persons, still alive, so far as appears, and whose names were not even given, to the effect that King died. As a matter of course, no inference of his death could be properly drawn merely from his injuries and the amputation of his leg; it having been affirmatively shown by the plaintiffs that he survived such injuries and amputation for a week or 10 days. See Blaisdell v. Bickum, 139 Mass. 250 , 1 N. E. 281 ; Wilson v. Brownlee, 24 Ark. 586 , 91 Am. Dec. 523 ; Chapman v. Chapman, 2 Conn. 347 , 7 Am. Dec. 277 ; Carnes v. Crandall, 10 Iowa, 377 ; Iberia Cypress Co. v. Thorgeson, 116 La. 218 , 40 South. 682 ; In re Estate of Hurlburt, 68 Vt. 366 , 35 Atl. 77 , 35 L. R. A. 794.

For the error above pointed out, the judgment is reversed, and the cause remanded to the court below for a new trial.