10 Ind. 398 | Ind. | 1858
This was an action brought by the appellee, as the widow of Owen Davis, against the appellants, for causing the death of said Owen, who was killed upon • the road of the appellants. Trial by a jury; verdict and judgment for plaintiff below. Motions for a new trial and in arrest of judgment overruled.
The action cannot be maintained at common law, and the statute which gave the widow a right of action in such case (1 R. S. 1852, p. 426), was repealed by § 784, 2 id. p. 205, as has already been determined by this Court in The Peru and Indianapolis Railroad Company v. Bradshaw, 6 Ind. R. 146. To this decision we adhere. Whether the appellant would be liable to the personal representatives of Owen Davis, upon the facts disclosed in this record, as provided for in 2 R. S. p. 205, § 784, is a question not before us, as the suit is not brought in such representative capacity.
The motion in arrest of judgment should have been sustained.
Section 372, 2 R. S. p. 121, provides that “where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the Court, though a verdict has been found against such party.”
There being no valid cause of action set up in the complaint, either at common law or by virtue of any statute, -in favor of the appellee as widow of the deceased, under the above statute she was not entitled to judgment, although a verdict had been found in her favor. Vide Lunning v. The State, 9 Ind. R. 309.
The judgment is reversed with costs. Cause remanded for further proceedings not inconsistent with this opinion.
