49 Ind. 93 | Ind. | 1874
Malinda Ream, as administratrix of the estate of Christena Ream, deceased, sued the said railroad company, alleging in her complaint, in substance, that the deceased was, before and at the time of her death, a resident citizen of Allen county; that she left her home on the 18th day of March, 1865, to visit her kindred, at Conway, in the county of Van Wert, Ohio; that on Sunday, the 19th day of said month, she was, with other young ladies, invited to ride on a hand-car, on the track of said railroad, for a distance of about four miles; that the defendant did then occasionally suffer the people living in and about that place to make such excursions on Sunday evenings, as no regular train passed over that part of said road on Sunday evenings, except the mail train ; and the decedent then started with the company to make said excursion on the-hand-car, all of them then well knowing that they could by ordinary care protect themselves from all danger, except from wanton injury, because from the said village east the line of the road was tangent, and the bed of the road level, for the distance of six and one-half miles, so that the head-lights of trains on the road approaching said village from the east could be plainly seen for said distance and every part of it, and because from said village west the track of said road is on a tangent line, and the road bed level, for the distance of nine miles from said village, and the head-lights on trains coming from the west could be seen at all times in the night, at said ^village, for said distance and every part of it, both east and
It is then alleged that she left as her heirs at law her father, Jacob Ream, of said county of Allen, and her mother, the said plaintiff; that her said father has since died intestate, at said county, leaving his widow, the said Malinda, Oscar Ream, Mary, Wilson, James, Lewis, and Charles Ream, their children and brothers and sisters of said deceased.
It is further alleged that by the statute law of the State of Ohio, in force at the time of said injury and death, the personal representatives of the deceased were entitled to an action, which statute is in the words following, to wit:
“ Be it enacted by the General Assembly of the State of Ohio, that whenever the death of a person shall be caused by wrongful act, neglect or default; and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof; then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as
“ Sec. 2. Every such action shall he brought by and in the name of the personal representatives of such deceased person; and the amount recovered in every such action, shall be for the exclusive benefit of the widow and. next of kin of such deceased person, and shall be distributed to the widow and next of kin in the proportions provided by law in relation to the distribution of personal estates, left by persons dying intestate; and in every such action, the jury may give such damages as they shall deem fair and just, not exceeding five thousand.dollars, with reference to the pecuniary injury resulting from such death to the wife and next of kin to such deceased person.”
And the plaintiff further avers that, by the law of said State of Ohio, the brothers and sisters of the deceased were her next of kin, and entitled under said law to the damages that may be recovered in this action.
It is also alleged that the said Christena, in her lifetime, thereby sustained damage in the sum of five thousand dollars, and the plaintiff, as such administratrix, a like sum since the death of said decedent, which has never been paid; wherefore, etc.
To this complaint, the defendant demurred, on the ground that the same did not state facts sufficient to constitute a cause of action, and the demurrer was sustained. This ruling of the court is assigned as error. There is no brief on the part of the appellee, and counsel for appellant discuss the case wholly with reference to the question, whether the action could be brought in this State upon the Ohio statute, the injury and death having occurred in that state.
We do not deem it necessary to decide this question, as we regard the complaint bad, on the ground of the contributory negligence on the part of the deceased, which should, according to well settled rules of law, prevent her representative from maintaining the action. See the cases of The Terre Haute and Indianapolis R. R. Co. v. Graham, 46 Ind. 239,
The judgment is affirmed, with costs.
Petition for a rehearing overruled.