Winnegar's Administrator v. Central Passenger Railway Company

• Decision Date: 07 May 1887
• Citation: 85 Ky. 547
• Parties: Winnegar's Administrator v. Central Passenger Railway Company.
• Court: Kentucky Court of Appeals

Page 547

85 Ky. 547

Winnegar's Administrator v. Central Passenger Railway Company.

Court of Appeals of Kentucky.

May 7, 1887.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

ALPHEUS BAKER FOR APPELLANT.

J. J. McAFEE OF COUNSEL FOR APPELLANT.

BROWN, HUMPHREY & DAVIE FOR APPELLEE.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

A demurrer was sustained to the petition in the court below, and the plaintiff, declining to amend, has brought the case to this court, insisting that the facts alleged constitute a cause of action.

The plaintiff is the administrator of Wm. Winnegar, and the defendant is the Central Passenger Railway Company. At the time of the injury complained of, the defendant was a common carrier of passengers in the city of Louisville, running and operating its street cars through its employes, upon and between certain designated streets within the city, and the appellant's intestate boarded the cars of the defendant, for the purpose of going from Fifteenth to Eighteenth street on Walnut. It is alleged that his intestate tendered the employe of the company, who was the driver, the ordinary fare, which was five cents, when the latter refused to receive it, and assaulted and struck his intestate, knocking him off the car on to the ground, where he was run over or struck by the car that the employe was then driving, and badly injured suffering great bodily pain and mental anguish from the fourteenth of June, 1885, continuously, until the twenty-sixth of the same month, at which time his intestate died by reason alone of said injuries.

That the driver was at the time in the employ of the defendant, and running the cars for the transportation of passengers by its authority, and unlawfully, and while actively in the course of his employment, inflicted the alleged injuries on the intestate. The plaintiff, as his administrator, sues therefore to recover the damages caused by said injury, resulting in the physical and mental pain as before alleged from the date of the injury up to the death of the intestate. He prays judgment, etc. The facts stated are, in substance, those set forth in the petition.

The court below seems to have regarded the action by the personal representative as an action for damages by reason of the death of the intestate, and if so, the demurrer was properly sustained. If the recovery is sought for the death of the intestate, the latter having no cause of action therefor against the company, none could survive to his administrator, as injuries affecting life were not the subject of a civil action at common law. Our statutes have enlarged the common law rule by making railroad companies and other corporations liable when death ensues to one by reason of the willful neglect of the agents or servants of the corporation; and when the party killed is not in the employ of the corporation, an action may be maintained for a less degree of neglect than either gross or willful neglect.

No question can arise under the statute in this case, as it is not alleged that the intestate lost his life or was injured by the negligence of the employe of the company; but, on the contrary, it is averred that the injury was willfully and intentionally inflicted, and in such a state of case as was decided by this court in Spring's Administrator v. Glenn, 12 Bush, 172, and Morgan v. Thompson, 82 Kentucky, 383, no action can be maintained under the statute by the personal representative for the destruction of his intestate's life. An intentional injury, as was said in those cases, can not be said to have been the result of negligence, nor can an action be maintained for the taking of human life intentionally by the personal representative on common law principles.

The statute of this State with reference to causes of action which survive, provides: "No right of action for personal injury, or injury to personal or real estate, shall cease or die with the person injuring or the person injured, except actions for assault and battery, slander, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury; but for any injury other than those excepted, an action may be brought or revived by or against the personal representative," etc. (General Statutes.)

The intestate might have instituted an action of assault and battery against the driver prior to his death, but dying before trial, the action under the statute would not survive to his administrator; but if he had sued the present appellee, alleging its existence as a carrier of passengers for hire, and that it had undertaken for a fixed sum to transport him as a passenger from one part of the city to the other, but in violation of its contract and its obligations to him as a passenger, the driver had thrown him from the cars, it can not be said that such an action would die with the injured party; but, on the contrary, it would survive to the...