Louisville, Cincinnati & Lexington R. R. Co. v. Case's Adm'R.
| Decision Date | 14 November 1873 |
| Citation | 72 Ky. 728 |
| Court | Kentucky Court of Appeals |
| Parties | Louisville, Cincinnati & Lexington R. R. Co. v. Case's administrator. |
The petition of April 2, 1872, as amended on the 9th of the same month, presented a cause of action under the first section of the act of March 10, 1854. It was alleged that the intestate was killed by the employees of the railroad company carelessly and negligently causing a train of its cars to be run over him, and that he was not at the time an employee of the company.
It was not necessary and would not have been proper to state in detail the circumstances from which negligence or carelessness might be inferred. The Code of Practice requires facts, and not the evidence of facts, to be stated. No different rule was intimated in the case of The Louisville & Portland Canal Company v. Murphy (ante, p. 522). It was merely held that it was not sufficient to allege that A lost his life by or through the negligence of B, without stating some act upon the part of B, or the failure by him to perform some legal duty, which act or failure contributed directly to the loss of life complained of.
The petition in that case was held defective because it did not show that the canal company was under a legal obligation to the public to keep in repair the bridge from which Murphy's intestate fell, and not because it failed to set out the particular circumstances from which it was expected the negligence in failing to repair would be deduced.
In actions for injuries to the person neither motive, intent, nor the circumstances under which the injury was inflicted need be stated. An allegation of the extent of the injury and the manner of its infliction is sufficient, and when it is the result of negligence or carelessness the charge is sufficient if made in general terms. (1 Chitty's Pl. 388, and 2 ib. 650; Chiles v. Drake, 2 Met. 147.)
The averment of the essential facts — viz., the death of the intestate — that his life was destroyed by the act of the railroad company in running its cars over him, and the carelessness and negligence through or by which this was done, made out for appellee a cause of action, under the first section of the act of 1854.
The amendment allowed by the court on the 18th of June was not an amended petition, setting up a new cause of action, but an amendment to the original petition, setting out the same facts, and alleging that the negligence heretofore complained of was willful. This amendment brought the cause of action within the provisions of the third section of the act of 1854, allowing punitive damages in cases in which the life of the deceased was lost or destroyed by the willful neglect of another person, or of a corporation or company, their servants or agents.
Under the first section of the act in question a personal representative can not recover, unless the life was lost through the negligence or carelessness of the proprietor or proprietors of a railroad, or by reason of the unfitness, negligence, or carelessness of their servants or agents, and not then if the person killed was at the time an employee of the party sued; but under the third section he may recover against any person, corporation, or company for the loss of the life of any one, whether an employee or not, upon proof that the death was the result of willful negligence.
In actions against railroad companies, which are embraced by the provisions of both the first and third sections of the act, an averment of willful negligence, resulting in the death of a person not an employee of the company, authorizes a recovery under either section, in case the proof warrants a recovery at all. If willful negligence be established, punitive damages may be awarded; if mere culpable negligence, then such damages as the person injured might have recovered if death had not ensued. As to railroad companies or proprietors, unless it be an employee who is killed, the two sections should be treated as one; and when it is averred in the petition that the person killed was not an employee, and that the negligence was willful, the action should be tried as an action to recover damages for personal injuries not resulting in death, except that instead of the common-law rule, by which the measure of the recovery is to be determined, the jury should be governed by the standards prescribed by the statute.
The allegation of willful negligence necessarily includes all inferior grades, and the jury must determine from the proof whether the recovery is to be had, if at all, under the first or third section of the act, and then assess the damages according to the measures of recovery fixed by the provisions of the act itself. This court did not express a different opinion in the Murphy case. The canal company could not be held responsible under the act of 1854 unless the negligence was willful.
The right of action allowed by the first section is not identical with those growing out of personal injuries, and which, under the tenth chapter of the Revised Statutes, survive to the personal representative. That chapter includes only causes of action growing out of personal injuries, not the direct and immediate cause of the death. By the common law injuries affecting life were not generally the subject of a civil action. (Shearman and Redfield on Negligence, secs. 290, 291.) Such was the law in this state at the time the Revised Statutes were adopted. (Eden v. The L. & F. R. R. Co., 14 B. Mon. 165.)
The tenth chapter applies alone to such causes of action as existed at the time of its enactment. It was so understood by the legislature, and hence at the session succeeding...
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