Van Vactor's Admx. v. Louisville & N. R. R.

66 S.W. 4, 112 Ky. 445, 1902 Ky. LEXIS 180

• Court: Court of Appeals of Kentucky
• Decided: January 8, 1902
• Status: Published

Opinion

Opinion of the couet by

JUDGE HOBSON —

Affirming.

William A. Wan Wactor was injured in appellee’s service on February 28, 1899. He died of those injuries on August 28, 1S99, leaving surviving him his widow, who was an infant, and an infant child two years old. The widow became of age on August 20, 1900. On October 22, 1900, she qualified as administratrix of her husband’s estate, and on November 30, 1900, .she filed this suit to recover of appellee damages for the loss of his life, charging that hi® injury was by reason of the negligence of appellee and its servants. The circuit court dismissed the petition on the ground that the cause of action was barred by limitation, the suit not having been filed within one year from the death of the intestate.

The ruling of the court below is in accord with the case of Carden v. Railroad Co., 101 Ky., 115 (19 R., 132), (39 S. W., 1027). That case was followed in Railroad Co. v. Kelly’s Adm’r (20 R., 1239), (48 S. W., 993), and was approved in Railroad Co. v. Brantley’s Adm’r (21 R., 473), (51 S. W., 585). It is insisted, however, for appellant that these cases do not apply, because the widow of the intestate and his child were both infants at the time the cause of action accruéd, and the disability of the widow was not removed until a few months before the suit was filed. Section 2525, Kentucky Statutes, is relied on, which provides that, “if a person entitled to bring” any of. the actions mentioned in the third article oí the chapter was at the time the cause of action accrued an infant, the action may be brought within the like number of years after the removal of such disability. But this section has no applica. tion, for neither the widow nor the infant child was “entitled to bring” the action. The cause of action to recover for. the death of a person from an injury inflicted by negligence is, by section 6, Id., vested in his personal representative. The infancy of persons who were not entitled to bring the action can have no effect upon the running of the statute. The cases above referred to rest upon tbe construction of the statute that the suit must be commenced within one year from the time of the death of the person injured.