Dora Greene; administratrix of the estate of Wm. Greene, deceased, brought an action in the Cincinnati Superior Court to recover for the wrongful death of her husband. It was claimed that deceased met death at the intersection of a road and tracks due to the negligence of the Louisville & Nashville Railroad Co., a corporation operating under the laws of, Kentucky.
The Railroad Co. alleged that the petition of Greene did not aver that there was a Statute of Kentucky authorizing an action for wrongful death. The court charged the jury on the measure of damages, according to the rule in Ohio in such cases; no evidence of proof being offered at the trial of an existing Kentucky statute authorizing a suit for wrongful death on March 3, 1924, a verdict was returned for Greene, and she filed a motion for a new trial on March 6. The following day she asked for leave to file an amendment setting up for the first time, the Kentucky Statute and after limitations had run thereon. The Railway Co. in the meantime, had made a motion for judgment notwithstanding the verdict. The Superior Court allowed the amendment, set aside the verdict and granted a , new trial, and overruled the motion for a judgment notwithstanding the verdict. The judgment of the trial court was affirmed by the Court of Appeals.
■ The Railroad Co. contends that the lower court erred in:
1. Overruling the motion for judgment on the pleadings, notwithstanding the verdict.
2. Allowing the amendment to the petition, which stated no cause of action.
3. Railroad Co. also contends that the statute of limitations had run against the cause set up by the amendment and the right of action no longér existed.