Clarke's Administrator v. Louisville & Nashville R. R. Co.

ligence to the defendant as was the approximate cause of the injury. L. & P. Canal Company v. Murphey's Adm'r., 9 Bush, 522; C. & O. R. R. Co. v. Thieman, 16 Ky. L. Rept., 612; Wing v. Haydon, 10 Bush, 280; Bentley v. Bustard, 16 B. M., 686. 2. The facts stated in the petition show conclusively, as a matter of law, such contributory negligence upon the part of the decedent as was the approximate cause of the injury complained of, and under such circumstances a demurrer to the petition will be sustained. Favre v. L. & N. R. R. Co., 91 Ky., 541; L. & N. R. R. Co. v. Sickings, 5 Bush, 1; Dunn v. R. R. Co., 78 Va., 646; 16 Am. & Eng. R. R. Cases, 370.

W. H. WADSWORTH ON SAME SIDE.

1. The facts stated in the petition show no culpable negligence on the part of the defendant and no act or omission is alleged which fixes any approximate cause of the injury; there is no negligent act or omission charged by which the int.estate's elbow was caused to protrude through the window and come in contact with the timbers. Tiffany, sec. 41; L. & P. Canal Co. v. Murphey, 9 Bush, 527; Board Internal Imp. Shelby Co. v. Scearce, 2 Duvall, 576.

2. The company can not be charged with negligence because it failed to anticipate the careless and inadvertent act of Clarke in protruding his elbow from the window. Rogers v. Hughes, 87 188.

Ky.,.

3. The allegations of the petition show such contributory negligence upon the part of Clarke as but for which the injury would not and could not have occurred and the demurrer was therefore properly sustained. Favre v. L. & N. R. R. Co., 91 Ky., 544; L. & N. R. R. Co. v. McCoy, 81 Ky., 413; Morel v. Miss. Valley Life Ins. Co., 4 Bush, 537; L. & N. v. Sickings, 5 Bush, 1; Ky. Central R. R. Co. v. Jacoby, 14 Ky. Law. Rept., 763; St. Louis, etc. R. R. Co. v. Rice, 29, S. W. Rep., 525; Hickey v. R. R. Co., 14 Allen, 43; Carico v. W. Va. R. R. Co., 52 Am. & Eng. R. R. Cases, 393; Pittsburg, etc. R. R. Co. v. Andrews, 17 Am. Rept., 568; Richmond & Danville R. R. Co. v. Scott, 88 Va., 958; 52 Am. & Eng. R. R. Cases, 405; Pittsburg, etc. R. R. Co. v. McClurg, 58. Penn. St., 294.

4. Under the provisions of section 241 of the Constitution, it was the intention of its framers to get rid of the troublesome and doubtful doctrine of willful negligence, and to simplify the whole subject. McClurg v. Alexander, 24 S. W. Rept., 619.

Clarke's Administrator v, Louisville & Nashville R. R. Co.

W. G. DEARING ON SAME SIDE.

1. The decedent was guilty of such negligence in protruding his arm from the window as will prevent a recovery. L. & N. R. R. Co. v. Sickings, 5 Bush, 1; Pittsburg, etc. R. R. Co. v. McClurg, 58 Penn. St., 295.

2. There is no allegation in the petition that the appellee or its servants in charge of the train had any notice that Clarke was about to thrust his arm out of the window, or that it was done with the permission or consent of any of them.

3. The window the passenger has a right to enjoy, but not to occupy, and his negligence consisted in thrusting his elbow or arm where it had no right to be. Pittsburg, etc. R. R. Co. v. McClurg, 56 Penn. St., 293; Morel v. M. V. Insurance Co., 4 Bush, 535; Todd v. Old Colony R. R. Co., 3 Allen, 18; Holbrook v. Ry. Co., 12 N. Y., 236; St. Louis, etc. R. R. Co. v. Hoffman, 27 Ind., 288; Telfee v. N. Y. R. R. Co., 38 N. Y., 290.

JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT:

Decedent, S. D. Clarke, in July, 1894, was a passenger on defendant's passenger train, and whilst going from Carlisle, Ky., to Helena Station, Ky., in passing through a tunnel his arm protruded through a window in the coach, struck an upright timber in the tunnel, which had been placed there by the defendant, and the collision of the arm with the timber inflicted an injury from which he died in a few days thereafter.

It is averred that the accident occurred in the manner as follows: That the intestate was sitting on the left side of the car by a window that was hoisted; that he took hold of the left lapel of his coat with his left hand for the purpose of 19ising same so as to enable him to put his eyeglasses in his vest pocket on the left side with his right hand; that as he raised the left lapel of his coat with his left hand for the purpose stated he, without intending to do so, protruded the elbow of his left arm through the open window,

Clarke's Administrator v. Louisville & Nashville R. R. Co,

not more than three inches beyond the place where the sash would be when the window is shut, and not more than one and one-half inches beyond the outer surface of the side of the car; that when his elbow was thus protruded the upright timbers in the tunnel were in such close proximity to the side of the car that they struck his arm near the elbow. It is also averred that the width of the tunnel had been reduced in repairing it; that at the time the injury occurred and for months previous thereto the tunnel was in a dangerous condition, and the upright timbers in the side of the tunnel were in such close proximity to the iron rails therein that when cars passed through the natural and usual oscillations of the cars were sufficient to cause them to strike against the timbers; that the sides of the passenger cars did often strike against the timbers, and that the condition of the tunnel as described existed when the accident occurred.

The petition as originally filed was in two paragraphs. In the first it was charged that the accident was the result of willful neglect; in the second it was charged that it resulted from gross negligence. The court compelled the plaintiff to elect which cause of action she would prosecute. She elected to prosecute the cause stated in the first paragraph. Although the plaintiff had two paragraphs in the petition there was in fact but one cause of action (if any existed) stated. The way to correct the petition was not by a motion to compel plaintiff to elect which cause of action she would prosecute. The plaintiff elected to prosecute the action under the first paragraph of the petition, charging the injury resulted from wilful neglect. In our opinion, as hereinafter stated, there is not, under the present statute (the one in force when

Clarke's Administrator v. Louisville & Nashville R. R. Co.

the accident occurred), a cause of action for wilful neglect. We will consider the case as if the petition contained appropriate averments under the statute as to negligence. Section 241 of the Constitution is as follows: "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act then in every such case damages may be recovered for such death from the corporations or persons causing same."

As the constitutional provision relating to the liability for producing death by wrongful act or negligence, and as the general assembly has a law (section 6, Kentucky Statutes) under the constitutional provision (section 241), we have very much desired to arrive at the intention of those who made the organic and statutory laws, the construction of which is involved in this case.

This court held (Henderson's adm'r. v. K. C. R. R. Co., 86 Ky., 389; Jordan's adm'r. v. C., N. O. & T. P. Ry. Co., 89 Ky., 40), no one could maintain an action (under section 3, chapter 57, General Statutes), when death was caused by "willful neglect" unless the deceased left a widow or child. The general assembly had failed to amend the statute so as to allow a recovery in cases where the decedent left neither widow or child.

These were the conditions which suggested to the Constitutional Convention the incorporation of section 241 of the present Constitution.

When the Constitution was adopted, under the statute, punitive damages could be awarded if the life was destroyed by wilful neglect.

Section 6, Kentucky Statutes, reads as follows: "When

Clarke's Administrator v. Louisville & Nashville R. R. Co.

ever the death of a person shall result from an injury inflicted by negligence or wrongful act then in every such case damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants causing the same, and when the act is willful or the negligence is gross punitive damages may be recovered, and the action to recover such damages shall be prosecuted by the personal representative of the deceased."

There is omitted from this section the words "willful neglect," which were in the former statute. Instead of the present statute authorizing the recovery of punitive damages when life is destroyed by willful neglect it authorizes a recovery of punitive damages when the "act is willful" or the "negligence is gross."

Punitive damages may be recovered under the present statute when the "negligence is gross."

This court had held that the words "wilful" and "gross" were not synonymous, and from the definition given by the court of these words "willful," as applied to negligence, meant a higher degree of negligence than "gross." The word "willful," as descriptive of a degree of negligence, is eliminated from our statute. "Willful" and "gross" are not used in the present statute as synonymous words. The word "willful" is descriptive of the "act," whilst the word "gross" is descriptive of a degree of negligence.

Under "Lord Campbell's Act" an action was maintainable against a person who, by his "wrongful act, neglect or default," may have caused the death of another person. Most,