Brown's Admr. v. Louisville & Nashville Railroad Co.

• Decision Date: 11 April 1895
• Citation: 97 Ky. 228
• Parties: Brown's Admr. v. Louisville & Nashville Railroad Co.
• Court: Kentucky Court of Appeals

97 Ky. 228

Brown's Admr. v. Louisville & Nashville Railroad Co.

Court of Appeals of Kentucky.

April 11, 1895.

APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.

PHELPS & THUM FOR APPELLANT.

A. E. WILLSON AND JACOB MERRIWETHER OF COUNSEL ON SAME SIDE.

LYTTLETON COOKE FOR APPELLEE.

JUDGE GRACE DELIVERED THE OPINION OF THE COURT.

The first question presented by this appeal is whether an administrator appointed in Kentucky on the estate of a decedent who was a non-resident of the State at the time of his decease, and who had no personal estate in Kentucky at the time of the appointment of the administrator here, other than a claim, demand or right of action given by the Kentucky statute to the administrator of a decedent who has been killed by the gross negligence of a railroad company in Kentucky, is a lawfully-appointed administrator. This question was made by defendant on affidavits, and by preliminary motion in this case in the court below, and decided on hearing in favor of such right as a lawful appointment, and as conferring the right to sue for such damages given under our statute. The question being thus made and responded to, and having been decided by the court affirming such right, it was no longer an open issue, proper to be made again in the same case, between the same parties, and plaintiff was quite right in not accepting such issue and in tendering no evidence on same on the final trial.

In this case it appears from the record that a previous action had been filed in the Jefferson Circuit Court by Mrs. Brown, the wife of the decedent, who had been appointed, by the county court of Clark county, Indiana, administratrix of her husband's estate, that being the county of his residence at the time of his death, and that this suit had been dismissed at the instance of the defendant, because, as held by the court, the foreign administratrix could not sue in Kentucky on a demand of this kind. Thereupon, and within the year given by the statute, the Louisville Trust Company was appointed the administrator by the Jefferson County Court and so files this suit. And if the same objection is still to be heard to this right of action by the administrator in Kentucky, then the estate of decedent is without remedy, although a right of action is given to the administrator of any one killed in Kentucky by the gross negligence of a railroad company, its agents or employes. And thus the benefits of the statutes intended for the use of the widow and children of such an one would be lost and destroyed by the decisions of the courts in denying to both jurisdictions the right to appoint an administrator who can maintain such an action. We scarcely think the courts should voluntarily involve themselves in such an absurdity, nor by decisions of this kind deliberately set themselves up to defeat the sovereign legislative will of the State, in an attempt to confer so material and just a benefit upon the widow and children of one so killed by the gross negligence of a railroad company.

We do not find that this question has been heretofore distinctly decided by this court, but deeming it of importance, and as presenting a case likely often to arise, we have thought proper to dispose of same.

Speaking strictly within the line of the General Statutes on this subject, defining when, under what circumstances and what courts shall have power to appoint an administrator for a non-resident decedent, it may be that the matter sued for in this action is not a debt, or demand belonging to or owned by the decedent at the time of his death. Neither is it strictly personal estate of the decedent. But beyond these general statutes we think the particular statute applicable to cases of this kind, wherein the right of action is expressly given to an administrator, necessarily implies the right to have an administrator appointed by the local courts for this purpose alone, if there be no other necessity or right or authority for such an appointment. And we deem the court of the county where the injury was done and where the man died the proper court to entertain such jurisdiction.

A further question presented by this record arises upon the action of the court below in giving a peremptory instruction to the jury to find for the defendant.

The evidence discloses that this accident happened on that part of the line of defendant's railroad in the city of Louisville running from the eastern end of the city southwardly and westwardly to the western end of the city, and on that part of their track lying between Baxter Avenue and Broadway, a distance of something like ten thousand feet, running south from Baxter Avenue to Broadway. And that within this distance there are no streets or other public passways crossing defendant's line of railway, though there are streets both east and west of same (some distance off), and running parallel with the track of defendant.

It thus appears that this line of railway and road-bed, tracks and side tracks, switches, and all appliances necessary for the use of same, were the exclusive property of the defendant company, disconnected with any right of use in the public or in any individual members of the public, not a servant of the defendant corporation. It was while the decedent, Thomas Brown, was traveling along this right of way, going south from Baxter avenue to Broadway, that he was, on the 5th of November, 1891, run over and killed, in the open daylight, about 3 or 4 o'clock in the afternoon, by a freight train of the defendants being then moved along their tracks, in the same direction that plaintiff's decedent was traveling.

Quite a number of witnesses introduced by plaintiff speak of this accident, under divers circumstances, and...