113 Ky. 952 | Ky. Ct. App. | 1902
Opinion ok tiie court ry
Affirming.
Charles Pointer, a fireman on one of appellant’s locomotives, was killed 17th March, 1899, in Lee county, Va., hv the wrecking of his train. A large rock, or quantity of rock and dirt, slipped from the side of a cut through which the railroad passed, and, not being discovered in time, the train ran into it. The train was derailed, and appellee’s intestate was scalded and otherwise injured by the overturning of the locomotive, from which injuries he died. On March 8, 1900, this suit was filed in the Whitley circuit court by his administrator to recover damages for his death, it being alleged that the accident was caused by the negligence of appellant, its agents and! servants', in failing to remove the stone and debris from the side of the cut in iime to have prevented the slip. It was charged that appellant knew, or by the exercise of ordinary care could have known, of the existence of the danger in time to have averted the accident. The answer denied the negligence charged, and alleged that, instead of being a mass of stone and dirt, there was but one stone that fell, and that appellant had no knowledge or notice of its dangerous condition in time to have prevented its falling, and could not have known it by the exercise of ordinary care. Later, but not within a year of the death of appellee’s intestate, appellee tendered an amended answer in which he admitted that there was but one stone that fell, instead of a large
Code, section 2902. “Whenever the death of a person may be caused by the wrongful act, neglect or default of any person or corporation. . . . and the act. neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action . . . then, and in every such case the person who or corporation . . . which would have been liable if death had not ensued, shall be liable to an action for damages.”
Sec. 2903. “Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve months after his or her death. The jury in such action, may award such damages as to it may seem fair and just, not exceeding ten thousand dollars, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased.”
Sec. 290á-. “The amount recovered in such action shall-after the payment of costs and reasonable attorneys'* fees be paid to the wife, husband, parent and child of the deceased, in -such proportion as the jury may have 'directed, or if they have not directed, according to the statute of distribution; and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent or child, the amount so recovered shall be assets in the hands of the personal representative to be disposed of according to law.”
Sec. 2557. “When any person shall be intestate as to his personal estate, or any part thereof, the surplus . . ,.*958 after payment of funeral expenses, charges of administra.tion and debts shall pass and be distributed to and among the same persons and in the same proportion, to whom and in which real estate is directed to descend.”
Sec. 2548. ‘-'When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary of such of his kindred male and female, as are not alien enemies, in the following course: First, to his children and their descendants; second, if there be no child, nor the descendant of any child, then to his father.”
To the filing of this amendment, appellant objected. The court, notwithstanding, permitted it to be filed. A demurrer to it was overruled. A demurrer was sustained to appellant’s plea of limitation of one year interposed in avoidance of it. ■ All these rulings raise but the one question, Was the amendment germane to the original cause of action sued on — therefore relating back to the time of the’filing of the original petition, so as to save-the running of the statute?
The position of appellant is that the original petition, showing affirmatively that the injury and death occurred beyond this State, and in the State of Virginia, and not stating or intimating that there existed in Virginia a statute allowing a recovery for death, stated no cause of action; that we must presume, in the absence of allegations to the contrary, that the common law, only, is in force in Virginia, where the negligent act and death are laid (Valz v. Bank, 96 Ky., 549 (16 R., 624) (29 S. W., 329) (49 Am. St. Rep., 306); the common law not allowing a recovery for the negligent injury of another resulting in instant death (Eden v. Railroad Co., 14 B. Mon., 204; Hansford’s
Bu,t it is argued that, as no cause of action was stated in the petition, there was nothing to amend by. And as there was no cause of action stated till the amendment was filed, it was really the beginning of the suit, at which time limitation had become a bar. This much may be said in one sense, of all necessary amendments. A plaintiff will not be allowed to amend bis cause of action by changing it. The office of the amendment is to perfect or complete that which is begun, but is incomplete. “The Civil Code, with a view to a trial upon the merits and the attainment !of justice, .allows great liberality in this respect, and the lower
We are of opinion that the amendment in the case at bar was germane to the original cause of action; that the filing of the petition, and issual of the summons thereon, was the commencement of this action (Code, section 39); and that the period of limitation fixed by the Virginia statute had not then run. The court’® ruling was proper, both as to filing the amendment, and sustaining the demurrer to the plea of limitation filed to it.
Appellant offered to file at the beginning of the trial an amended answer in which it averred that the accident was caused, not by the falling of one large rock, but by a slip in the side of the cut of a large mass of rock and dirt. The court refused to permit this amendment, and of that ruling appellant makes serious complaint. As has been srated, the accident occurred in Lee county, Va., and the trial was had in Whitley county, Kv., probably more than a hundred miles distant. Appellee, in the development of his- case, had taken the deposition of a dozen or more witnesses living in the vicinity where the accident occurred; this evidence constituting the bulk of appellee’s case. The evidence was taken upon the issue as then formed, and as it had stood for somé time. To allow its change at the beginning of the trial was to have practically destroyed the evidence taken on this point. At least, it would have necessarily resulted in a further postponement of the trial. In Eskridge’s Ex’rs v. Railway Co., 89 Ky., 367 (11 R., 557) (12 R. W., 580), in the original petition it was stated that the injury was caused by the neg
In the concluding argument to the jury, counsel for plaintiff read to the jury a statement published in a daily newspaper that within a day or two previous to the trial a jury
A part of the instruction given to the jury, of which complaint is made, is as.follow’s: “If you believe from the evidence that at the time the accident occurred, resulting in the death of Charles Pointer, said stone was unsafe, dangerous and liable to fall, and that the section foreman knew,
Another objection to the instructions is that they say to the jury, “if you find for the plaintiff; you may say iff your verdict what proportion of the sum so found shall go to the father or mother of the deceased.” . This instruction, of course, was predicated upon the Virginia statutes, supra, which provides that, in case of the intestacy of the decedent without wife or issue, the recovery should “be apportioned to the parent in such proportions as the jury may have directed.” Under section 2548 of the Virginia statute, supra, it was shown that if there was no child, nor the descendant of any child, Then the estate was to go' to his father.
The remaining question for decision is upon appellant’s plea that under the laws of Virginia, where the accident occurred, aqd by which, of course, the recovery must be regulated, the deceased and section foreman or track repairer were fellow servants; that the law- of Virginia did
The verdict is fully sustained by the evidence and pleadings. Judgment affirmed, with damages.