127 Ky. 55 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
This is an appeal from a judgment of the Shelby circuit court upon a verdict awarding appellee, W. O. Haynes, administrator of the estate of Wm. E. Simrall, deceased, $5,000 damages for the death oi the latter, alleged to have been caused by the negligence of appellant, Louisville & Nashville Railroad Company. The intestate on July 25, 1901, was station agent, for appellant at Scott’s Station, in She]by county, Ky. and was that day injured by being struck by a car door, which fell upon him from one of appellant’s cars, standing or moving on á side track at Scott’s Station, as he was passing it to deliver a waybill to the conductor of a freight train then about to leave the station. The intestate was knocked down by
We think the evidence fairly supports the conclusion that the death of the intestate can with reasonable certainty be attributed to the injuries he received from the falling upon him of the car door, and appellant offered no testimony in support of any other theory as to the cause of his death. We are also of opinion that the evidence easily leads to the further conclusion that the injuries he sustained resulted from1 appellant’s negligence. Indeed, no other evidence of such negligence was needed than that furnished by the dangerous condition of the car door, which must have been known to. appellant’s servants in charge of the train before it fell upon Simrall, or could, by the use of ordinary care, have been discovered by . them, either before or after the arrival of
It is strongly insisted for appellant that the court erred in sustaining appellee’s demurrer to its pleas of the statute of limitations; it being the contention of counsel that no right of action exists for negligently causing the death of a person where no right of action for the injury causing the death exists at the time the death occurs, and, further, that neither section 241 of the Constitution of Kentucky nor section 6 of the Kentucky Statutes of 1903 was intended to give a right of action for causing the death of a person, unless a right of action for the injury existed at the time of the death. The argument advanced by learned counsel for appellant is that, as section 2516, Ky. Stats. 1903, which provides: “An action for an injury to the person of the plaintiff, or his wife, child, ward, apprentice, or servant, or for injuries to person, cattle, or stock, by railroads or any company or corporation * * * shall be commenced within one year next after the cause of action accrued and not thereafter” — applies to actions for injuries resulting in death, as well as those which do not result in death, the statute runs in each case from the time the injury was inflicted. It is further argued that- the starting point is the same in each case, and that if, in tbe ease of an injury subsequently resulting in the loss of a leg, the statute runs from the date of the original injury, and not from the loss of the leg, so, in the case of an injury subsequently resulting in death, the statute runs from the date of the original
Though plausible, the foregoing argument is unsound. Hardships may result in exceptional cases from the application of any statute or legal principle, however salutary the operation of either in general. There is only a seeming analogy in the cases instanced by counsel. If the person injured sues for the injuries sustained, while he must do so within the year, he may not only recover for the physical and mental suffering and impairment of his ability to earn money experienced up to the time of the trial, from the injuries received caused by the negligence of the defendant, but also for such of either or both as may reasonably be expected to result to him therefrom in the future. If the person injured, die of the injuries, his administrator, by suing within a year of the infliction of the injuries, may recover for his mental and physical suffering, loss of time, and surgical bills down to the time of the death, On the other hand, if the administrator sues to recover for the death of his intestate, caused by the negligence of another, the measure of damages is wholly
The essential facts necessary to a recovery in this case were the death of Simrall and the negligence of appellant in causing it. At common law an action would not lie to recover damages for causing the death of a person. Lord Campbell’s act, passed by the English Parliament in 1846, was the forerunner of the many similar acts to be found on the statute books of the several states of the American Union. Section 241, Const. Ky., and section 6, Kv. Stats. 1903, in meaning closely follow it. Section 241 of the Constitution provides: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case,
The provisions of Lord Campbell’s act were first adopted in 1854 (1 Acts 1853-54, p. 175, c. 964) by an act of the Legislature of this State, in section 4 of which it was provided: “The actions under this act shall be commenced within one year from the time of such death.” 2 Rev. Stats. (Stanton) pp. 510-512. The act of 1854, upon a revision of the statutes, was transferred ■ to chapter 57 of the General Statutes, together with other provisions, under the title “Injuries to Persons or Property.” Section 4, which
As the act of 1854 settled and fixed the law as to limitation in such an action as this, in express terms, the change of phraseology made by section 3, art. 3, c. 71, Gen. Stats., on that subject, or the addition thereto of the clause “and not thereafter,” should not be construed as a change in the law. As said in Overfield v. Sutton, 1 Metc. (Ky.) 621: “Where a law has been settled by clear expressions or adjudications, the mere change of its phraseology in a revision of the statutes cannot be construed a change of the law, unless such phraseology evidently purported to work a change.” In other words, if section 4 of the act of 1854 is in meaning and effect included in section 3, art. 3, c. 71, Gen. Stats., then it must follow that it is also included in section 2516 of the Kentucky Statutes of 1903; and therefore it conclusively appears that from 1854 until the present day the legislative intent has been that the cause of action for the death accrues as of the date of the death, Such
The question under consideration was in effect settled in Carden’s Adm’r v. L. & N. R. R. Co., supra.While it was the contention of the plaintiff in that case that the statute ran from the date of the appointent of the administrator, instead of the date of his death, the court held that it began to run at the death of the intestate, as the following excerpt from the opinion will show: “It seems evident that it was the intention of the Legislature to limit the time when actions could be instituted under this statute to one year from the day when the cause of action accrued, which undoubtedly was the date of the death.” It will be found, too, that the doctrine announced in the Carden case was reaffirmed by this court in the later cases of C. & O. Ry. Co. v. Kelley’s Adm’r, 48 S. W. 993, 20 Ky. Law Rep. 1238, and Wilson’s Adm’r v. I. C. R. R. Co., 92 S. W. 572, 29 Ky. Law Rep. 148. A similar construction was given an Indiana statute, very much like our own, by the Supreme Court in Louisville, Evansville & St. Louis R. R. Co. v. Clarke, 152 U. S. 230, 14 Sup. Ct. 579, 38 L. Ed. 422.
We cannot agree with counsel for appellant that the court erred in instructing the jury as to the measure of damages. The instruction is as follows: “If you should find for the plaintiff, it should be in such a sum as you may believe from the evidence will reasonably and fairly compensate the estate of Wm. F. Simrall for the destruction of the power of Wm. F. Simrall to earn money, not exceeding $40,000, the
It is our conclusion that no error of substantial import was committed by the lower court in this case. Wherefore the judgment is affirmed.