(1) When any person dies from any injury
resulting from or occasioned by the negligence, unskillfulness, or criminal intent of
any officer, agent, servant, or employee while running, conducting, or managing any
locomotive, car, or train of cars, or of any driver of any coach or other conveyance
operated for the purpose of carrying either freight or passengers for hire while in
charge of the same as a driver, and when any passenger dies from an injury
resulting from or occasioned by any defect or insufficiency in any railroad or any
part thereof, or in any locomotive or car, or other conveyance operated for the
purpose of carrying either freight or passengers for hire, the corporation or
individuals in whose employ any such officer, agent, servant, employee, master,
pilot, engineer, or driver is at the time such injury is committed, or who owns any
such railroad, locomotive, car, or other conveyance operated for the purpose of
carrying either freight or passengers for hire at the time any such injury is received,
and resulting from or occasioned by the defect or insufficiency above described
shall forfeit and pay for every person and passenger so injured the sum of not
exceeding ten thousand dollars and not less than three thousand dollars, which
may be sued for and recovered:
(a) In the first year after such death:
(I) By the spouse of the deceased;
(II) Upon the written election of the spouse, by the spouse and the heir or
heirs of the deceased;
(III) Upon the written election of the spouse, by the heir or heirs of the
deceased;
(IV) If there is no spouse, by the heir or heirs of the deceased or the
designated beneficiary, if there is one designated pursuant to article 22 of title 15,
with the right to bring an action pursuant to this section, and if there is no
designated beneficiary, by the heir or heirs of the deceased; or
(V) If, at the time of death, there is no spouse, no heir or heirs, and no
designated beneficiary, or, if the deceased was an unmarried minor without
descendants or an unmarried adult without descendants, and there is no mother
and no father of the deceased, then by the sibling or siblings of the deceased or the
heir or heirs of the sibling or siblings of the deceased.
(b) (I) In the second year after such death:
(A) By the spouse of the deceased;
(B) By the heir or heirs of the deceased;
(C) By the spouse and the heir or heirs of the deceased;
(D) By the designated beneficiary of the deceased, if there is one designated
pursuant to article 22 of title 15, with the right to bring an action pursuant to this
section, and the heir or heirs of the deceased; or
(E) By the sibling or siblings of the deceased or the heir or heirs of the sibling
or siblings of the deceased, but only if, at the time of death, the deceased had no
surviving spouse, no heir or heirs, and no designated beneficiary, or, if the deceased
was an unmarried minor without descendants or an unmarried adult without
descendants, and had no mother and no father.
(II) However, if the heir or heirs of the deceased commence an action under
the provisions of sub-subparagraph (B) of subparagraph (I) of this paragraph (b), the
spouse or the designated beneficiary of the deceased, if there is one designated
pursuant to article 22 of title 15, C.R.S., with the right to bring an action pursuant to
this section, upon motion filed within ninety days after service of written notice of
the commencement of the action upon the spouse or designated beneficiary, shall
be allowed to join the action as a party plaintiff.
(c) (I) If the deceased is an unmarried minor without descendants or an
unmarried adult without descendants and without a designated beneficiary
pursuant to article 22 of title 15, C.R.S., by the father or mother who may join in the
suit. Except as provided in subparagraphs (II) and (III) of this paragraph (c), the
father and mother shall have an equal interest in the judgment, or if either of them
is dead, then the surviving parent shall have an exclusive interest in the judgment.
(II) For cases in which the father and mother are divorced, separated, or
living apart, a motion may be filed by either the father or the mother prior to trial
requesting the court to apportion fairly any judgment awarded in the case. Where
such a motion is filed, the court shall conduct a post-judgment hearing at which the
father and the mother shall have the opportunity to be heard and to produce
evidence regarding each parent's relationship with the deceased child.
(III) On conclusion of the post-judgment hearing conducted pursuant to
subparagraph (II) of this paragraph (c), the court shall fairly determine the
percentage of the judgment to be awarded to each parent. In making such a
determination, the court shall consider each parent's relationship with the
deceased, including custody, control, support, parental responsibility, and any other
factors the court deems pertinent. The court's determination of the percentage of
the judgment awarded to each parent shall not be disturbed absent an abuse of
discretion.
(d) For purposes of this section, father or mother means a natural parent of
the deceased or a parent of the deceased by adoption. Father or mother does not
include a person whose parental rights concerning the deceased were terminated
pursuant to the provisions of title 19, C.R.S.
(2) In suits instituted under this section, it is competent for the defendant for
his defense to show that the defect or insufficiency named in this section was not a
negligent defect or insufficiency. The judgment obtained in an action under this
section shall be owned by such persons as are heirs at law of the deceased under
the statutes of descent and distribution and shall be divided among such heirs at
law in the same manner as real estate is divided according to said statute of
descent and distribution.