Givens v. Kentucky Central Railway Co.

JUDGE RRYOR

delivered the opinion on the court.

When this cause was considered and the judgment affirmed, the court was of the opinion that the two cases of Henderson v. Kentucky Central R. Co., 86 Ky., 389 , and Jordan’s Adm’r v. Cincinnati, &c., R. Co., ante, p. 40, settled this case; but after reconsidering the question, we are satisfied the court erred in the former opinion. While the death of the child was instantaneous, and at common law no cause of action survived to his personal representative, the statute that applies alone to railroad corporations gives in express terms a right of action to the personal representative of the person killed. That statute reads: “If the life of any person not in the employment of a railroad company shall be lost in this Commonwealth by reason of the negligence- or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or negligence or carelessness of their servants or agents, the personal repre *233 sentative of the person whose life is so lost may-institute suit and recover damages in the same manner that the person himself might have done for any injury where death did not ensue.” (Section 1, chapter 57, General Statutes.)

The case of Louisville & Portland Canal Co. v. Murphy’s Adm’r, 9 Bush, 522 , and similar cases, were-where the intestate was killed by some other agency than that of a railroad train, and-there being no statute by which a right of action was given the administrator,, the common law rule prevailed, and the death being instantaneous, there was no cause of action.

In this case a child nine years of- age was run over and killed by a train of cars belonging to the appellee, his death resulting, as is alleged, by the negligence óf the employes of the defendant in charge of the train. At common law there was no cause of action that survived to the personal representative upon such a state, of fact, and the law-making poAver, in order to provide a remedy against railroad companies, when negligence on the part of its employes has caused the death, has sacli that the representative of the intestate may recover damages in the same manner that the person himself might have done.for any injury when death did not ensue. Por a personal injury the intestate, if living, could maintain his action and recover damages for the negligence of the employes of the company, and as death has ensued, the statute provides that for the injury resulting in the loss of life the personal representative may recover. As there are two sections of this statute, the one permitting the personal representative to sue and the other giving to the widow and *234 children the right to recover punitive damages, and to appropriate the amount of recovery to their own use, which right is given in the third section, the personal representative who sues under the first section must be confined in his recovery to compensatory damages. (Louisville, &c., R. Co. v. Case, 9 Bush, 728 .) It was evidently intended to restrict the recovery under the first section to compensation, and not damages by way of punishment for the wrongful act. It is true this court has held that a recovery under the third section of the act may be had, although a less degree of neglect is established than willful neglect, and as the widow, child or personal representative may sue under that section, a recovery in the name of either would bar a right of action under the first section. The degree of neglect alleged determines the question as to the section under which the plaintiff is seeking to recover, and if ordinary neglect, or the averment that the intestate’s death was caused by the negligence only of the employes of the company, the action will be regarded as under the first section, and the recovery limited to compensation, and neither the widow nor the child can maintain such an action, but it must be instituted in the name of the personal representative. The cases of Louisville, &c., R. Co., v. Case’s Adm’r, 9 Bush, 728 , and Kentucky Central R. Co. v. Gastineau’s Adm’r, 83 Ky., 119 , decide this question; and if is apparent, whatever may be said as to the manner in which the recovery, when had and secured, is to be distributed by the administrator, that the Legislature intended to confine the right of action under the first section to the personal representative, and as there *235 is no direction as to the disposition of the fund recovered under that section, the personal representative would hold it like other assets left by the intestate.

Judgment reversed, and cause remanded with directions to overrule the demurrer, and for proceedings consistent with this opinion.