City of Lexington v. Lewis's Administratrix
| Citation | 73 Ky. 677 |
| Parties | City of Lexington v. Lewis's administratrix. |
| Decision Date | 27 February 1874 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM FAYETTE CIRCUIT COURT.
BRECKINRIDGE & BUCKNER, For Appellant.
BRECKINRIDGE & THORNTON, KINKEAD & BUCKNER, For Appellee.
JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.
The city of Lexington contracted with McLaughlin & Murphy to construct a cistern on Broadway, between Main and Water streets. While the work was in progress a fragment of stone, thrown from the cistern by a blast, struck and killed G. H. Lewis, the infant son of Margaret Lewis.
She, as administratrix of the deceased, sued the city, and seeks under the provisions of the third section of the act of 1854 to recover punitive damages for the killing of the intestate.
The statute provides "that if the life of any person is lost or destroyed by the willful neglect of another person or persons, company or companies, corporation or corporations, their servant or servants, then the personal representative of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover punitive damages for the loss or destruction of the life aforesaid."
It is averred in the petition that the parties engaged in the prosecution of the work "acted so recklessly, carelessly, and wantonly, and with such indifference to the rights of others, and especially her son, that one of the stones so thrown up by said blasting with gunpowder was thrown with such force against said lad that he was instantly killed by it."
It is not charged, in terms, that the parties were guilty of "willful neglect" in the blasting of the rock, nor that the killing was the result of "willful neglect."
We are not prepared to say that the terms "reckless" and "wanton" may not be so used as to be equivalent to that of "willful." This court has defined willful negligence as contemplated by this statute to be such conduct as evidences "reckless indifference to the safety of the public, or an intentional failure to perform a plain and manifest duty, in the performance of which the public has an interest. (Jacobs's adm'r v. Louisville & Nashville R. R. Co., 10 Bush, 263.)
It has held that willful and wanton neglect are nearly synonymous, each implying either actual malice or anti-social recklessness. (2 Duvall, 577.)
Appellee does not aver directly that the conduct of the city, or of those for whose conduct she claims that the city is answerable, was...
To continue reading
Request your trial