89 Ky. 231 | Ky. Ct. App. | 1889
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
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
Judgment reversed, and cause remanded with directions to overrule the demurrer, and for proceedings consistent with this opinion.