101 Ky. 34 | Ky. Ct. App. | 1897
delivered the opinion oe the court:
Decedent, S. D. Clarke, in July, 1894, was a passenger on defendant's passenger train, and whilst going from Carlisle, Ky., to Helena Station, Ky., in passing through a tunnel his arm protruded through a window in the coach, struck an upright timber in the tunnel, which had been placed there by the defendant, and the collision of the arm with the timber inflicted an injury from which he died in a few days thereafter.
It is averred that the accident occurred in the manner as follows): That the intestate was sitting on the left side of the car by a window that was hoisted; that he took hold of the left lapel of his coat with his left hand for the purpose of i aising same so as to enable him to put his eyeglasses in his vest pocket on the left side with his right hand; that as he raised the left lapel of his coat with his left hand for the purpose stated he, without intending to do so, protruded the elbow of his left arm through the open window,
The petition as originally filed was in two paragraphs. In the first it was charged that the accident was "the result of willful neglect; in the second it was charged that it resulted from gross negligence. The court compelled the plaintiff to elect which cause of action she would prosecute. She elected to prosecute the cause stated in the first paragraph. Although the plaintiff had two paragraphs in the petition there was in fact but one cause of action (if any existed) stated. The way to correct the petition was not by a motion to compel plaintiff to elect which causfe of action she would prosecute. The plaintiff elected .to prosecute the action under the ■first paragraph of the petition, charging the injury resulted from wilful neglect. In our opinion, as hereinafter stated, there is not, under the present statute (the one in force when
We will consider the case as if the petition contained appropriate averments under the statute as to negligence!. Section 241 of the Constitution is as follows: “Whenever the-death of a person shall result from an injury inflicted by negligence or wrongful act then in every such case damages may be recovered for such death from the corporations or persons-causing same.”
-As the constitutional provision relating to the liability for producing death by wrongful act or negligence, and as the* general assembly has a law (section G, Kentucky Statutes) under the constitutional provision (section 241), we have very much desired to arrive at the intention of those who made the organic and statutory laws, the construction of which is involved in this case.
. This court held (Henderson’s adm’r. v. K. C. R. R. Co., 86 Ky., 389; Jordan’s adm’r. v. C., N. O. & T. P. Ry. Co., 89 Ky., 40), no one could maintain an action (under section 3, chapter 57, General Statutes), when death was caused by “willful neglect” unless the deceased left a widow or child. The general assembly had failed to amend the statute so as to allow’ a recovery in cases where the decedent left neither widow or child.
These were the conditions which suggested to- the Constitutional Convention the incorporation of section 24’1 of the present Constitution.
When the Constitution was adopted, under the statute, punitive damages could be awarded if the life was destroyed by wilful neglect.
Section 6, Kentucky Statutes, reads as follows: “When
There is omitted from this section the wordsl “willful neglect,” which were in the former statute. Instead of the present statute authorizing the recovery of punitive damages when life is destroyed by willful neglect it authorizes a recovery of punitive damages when the “act is willful” or the “negligence is gross.”
Punitive damages may be recovered under the present statute when the “negligence is gross.”
This court had held that the words “wilful” and “gross” were not synonymous, and from the definition given by the court of these words “willful,” as applied to negligence, meant a higher degree of negligence than “gross.” The word “willful,” as descriptive of a degree of negligence, isl eliminated from our statute. “Willful” and “gross’” are not used in the present statute as synonymous words. The word “willful” is descriptive of the “act,” whilst the word “gross” is descriptive of a degree of negligence.
Under “Lord Campbell’s Act” an action was maintainable against a person who, by his “wrongful act, neglect1 or default,” may have caused the death of another person. Most,
These various statutes differ widely in language in which they are 'expressed, both from the English act and from each other. The words “wrongful act” had no place in our statute relating to actions for the destruction of life. It first appeared in section 241 of 'the Constitution. It is a more comprehensive term than the word “negligence.” Necessarily in every case of negligence there mu^t be a “wrongful act,” either of omission or of commission. There may be an actionable “wrongful act” which is not the result o'f negligence, neiiher is there an element of negligence in it. It may be willfully or intentionally done. The words “wrongful act” denote or embrace all acts other than those constituting mere negligence, which are wrong, and inflict an injury resulting in death.
Our conclusion is supported’ by the language of the statute which allows a recovery of punitive damages if the “act is willful” or the “negligence is gross.” If the general assembly was enacting a statute on negligence alone why did it not say punitive damages could be recovered when the negligence is gross or willful. If the constitution and statute did not provide for a recovery for an injury by negligence, but used the words “wrongful act;,” then we would adjudge that wrongful acts embraced or included negligent acts.
Section 241 of the Constitution did not repeal section 3, chapter 57, General Statutes. (Wright, &c. v. Wood, 96 Ky., 56.)
Section 6 of the present statute did repeal section 3, chapter 57, General Statutes.
This court held in Passamaneck’s adm’r. v. Louisville Ry. Co., 17 Ky. Law Rep., 763, that section 241 is not intended to deprive a defendant of the right to. rely on contributory negligence as a defense. Had Clarke survived t'he injury which produced his death, in an action by him for damages for the injury, in which he alleged the injury was the result of gross negligence, contributory negligence would ¡have beeni available as a defense. We can perceive no reason why it should not be equally as available in an action by his personal representative. Plaintiff seeks to avoid the defense of contributory negligence by alleging that the death, resulted from willful neglect. As we said, the present statute does mot provide that punitive damages may be recovered by Showing willful neglect. It follows that the former adjudications of this court, that contributory negligence was not a defense “when willful neglect was shown, are not applicable to actions for negligence or gross negligence under the present statute.
We will further but briefly consider the case in the light
In Morel v. Miss. Valley Life Ins. Co., 4 Bush, 537, it was-alleged that the plaintiff “inadvertently” put his arm a short distance out of the window of the car, when his hand came-in contact with a post while the train was running with its usual velocity, without the slightest necessity for doing so,, and the court said it was' needlessly and negligently done,, and he was not entitled to recover.
In the Sickings case, 5 Bush, 7, the arm was placed out of the window unthoughtedly and unnecessarily, and the court held that when one places his arm out of a car window voluntarily and without any qualifying circumstances impelling-him to, it must be regarded as negligence in se, and when that is the state of the evidence it is the duty of the court to> declare the negligence in law.
In the Favre case, 91 Ky., 544, it was alleged that the plaintiff allowed his hand to protrude eight or ten inches out of the window; that the train was running at a dangerous and unusual rate of speed; that there were dangerous obstructions in immediate proximity to the track unknown to him,, whereby his arm was broken.
The court said the “rule of law that a party is precluded from recovering for an injury, to which he so far contributed as that but for his own negligence and want of ordinary care it would not have happened, can,- upon neither principle nor public policy, be relaxed or qualified in this character of case,, even if the conduct of the other party could be logically considered in any case.”
■The cases are in accord with the current of authority. In
Clarke inadvertently, unthoughtedly and unnecessarily, if not purposely, allowed his arm to protrude out of the window and this was negligence in se; although he did so in placing his eyeglasses in his pocket, nevertheless! it was his own act
The necessity for adjudging what are the “qualifying circumstances impelling him to it” (to which the courts refer) which render the act of putting an arm outside of the window non-negligent, does not arise in this case. It is not alleged that the; arm protruded in consequence of the oscillations or swerving of the oars, or from any act of those in charge (of the train, but it is. alleged that the deceased put his arm outside of the window of the car.
The facts alleged in the petition, and which are admitted as true on demurrer, show that but for the decedent’s own
Under the doctrine of the Favre case, it was proper to sustain a demurrer to the petition
The judgment is affirmed.