delivered the opinion oe the court.
John Dentzel, while in the employ of the appellant, the Newport News and Mississippi Yalley Company, as a brakeman,- and when engaged in his duties as such *45employe, received injuries which caused his death nine hours after their infliction, A heavily loaded freight train of the appellant, of about seventeen cars, stopped when upon an ascending grade. In endeavoring to move it, a draw-head was torn from its place, but the train soon started again, and, upon doing so, the deceased resumed his proper place as a brakeman upon the front part of the train, while the only other brakeman upon the train, and whose place was upon the rear part of it, went into the caboose, which was the rear car, with the conductor. The train, in some way not disclosed, was soon thereafter broken in two sections, and the engineer, becoming apprised of it, put on additional steam and ran ahead with the front section, the deceased being thereon, to avoid a collision. As soon as he discovered that the train was broken, he whistled for the rear section to put on the brakes, and the evidence shows if it had been done a stop would have been had within a very short distance, say the length of the train. The front section ran on for about two miles and a half, passing one station in the meantime, the engineer repeatedly giving the whistle alarm for a stop of the rear section, so often, indeed, that it alarmed the people living along the road. Supposing that those upon it had stopped it, he then checked the front section, and almost as soon as he did so the rear section ran into it, and in the wreck the deceased was injured. The testimony shows that the rear brakeman, instead of being at his post, was in the caboose from the time when he went into it, as already stated, until the collision occurred.
While the appellant is not liable to an employe *46for injury arising from the neglect oí a co-laborer, not superior to the one injured, yet, in this instance, the conductor, who was in charge oí the train, was a party to the neglect. He not only permitted it upon the pari of the rear brakeman, but also failed to give attention otherwise to the conduct of the train. The rule of respondeat superior, therefore, applies, and it is evident the neglect was willful. It was an intentional failure upon the part of the one in charge of the train, and who represented the company, to perform a known and manifest duty, important to the safety of the deceased.
The averments of the petition show that this action by the administrator of the deceased was not brought under section 3 of chapter 57 of the General Statutes, which authorizes suit for the recovery of punitive damages for the loss of life against the person or company or corporation through whose willful neglect it occurs. Such an action can not be maintained in a case like this one, as this court has repeatedly held in Henderson v. Ky. Cent. R. Co., 86 Ky., 389; Jordan’s Adm’r v. Cincinnati, &c., R. Co., 89 Ky., 40, and other cases, because the deceased left neither wife nor child. But it was brought, alleging that the injury occurred through the willful neglect of those controlling the train for the company, and to recover such damages as would have compensated the deceased for the loss of time and his physical and mental suffering from the time of the happening of the injury up to his death, as well as such exemplary damages as the jury might see. proper to award under all the circumstances of the case, not exceeding the amount claimed in the *47petition. The demurrer to the third paragraph of the answer, which set up as a defense to any recovery that the deceased left neither wife nor child, was, therefore, properly sustained.
By the common law no right of action accrued to any one for personal injuries resulting in instant death; but if there was an appreciable interval of suffering, a right of action for it did accrue to the person injured ; and this right of action survives to his personal representative by chapter 10 of the General Statutes, which provides: “No right of action for personal injury, or injury to real or personal estate, shall cease or die with the person injuring or the person injured,' except actions for assault and battery, slander, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury; but for any injury other than those excepted, an action may be brought or revived by the personal representative, or against the personal representative, heir or devisee, in the same manner as causes of action on contract.”
The statute authorizing an action for loss of life through willful negligence was intended not to restrict but to enlarge the common law; to give a right of action where none existed before, and not to cut off one which already existed. (Hansford’s Adm’r v. Payne & Co., 11 Bush, 380.)
It has been suggested, in the consideration of the case, that if the personal representative of an injured employe, who does not die immediately, and who leaves neither wife nor child, can sue for the loss of time and the suffering of the deceased between the *48time of the infliction of the injury and his death, then this will, in effect, defeat the construction which has been given to the statute; and that although, by reason of having no wife or child, no action can be maintained for the loss of life, yet the jury will be apt to consider it in estimating the damages, and render a verdict accordingly. This is, however, supposing that the jury will not regard their oaths, and will disregard the instruction of the court. The life of a person may, under the tables of mortality, be estimated in value. When the jury are informed of his age and his ability to labor, they can fix its value; and certainly they will not return damages for its loss when told, as they were in this case, that they can not do so.
As the law now stands in this State, the personal representative of any person who was not in the employment of a railroad company may sue for the loss of Ms life through the neglect of the company, whatever be the degree of the neglect, and just as the person himself might have done for the injury if death had not ensued. This is by virtue of the first section of chapter 57 of the General Statutes, and by the third section a recovery may be had for the loss of life of any person, whether a railroad employe or not, if he left a wife or child, and it was caused by the willful neglect of a person, company or corporation ; and the recovery may include punitive damages. But this statute gives a remedy for the loss of life, and it does not abrogate the right, which existed at common law, of one who is injured, whether the injury be inflicted by a railroad company in whose *49employ lie may be or not, and who does not die immediately, of either suing before his death for the loss of time and his suffering, or of his personal representative to do so after his death:
In this case, after the testimony for the appellee was closed, the appellant declined to offer any, and by its counsel announced in open court that it conceded its liability upon the facts shown, and the only question was the measure of recovery. This was, in effect, a withdrawal'of its answer; it was a confession of liability.
It is now urged as grounds for a reversal, first, that the court improperly submitted to the jury the question, whether the appellant had been guilty of willful neglect; and, second, that the verdict is excessive. It is said that the answer admitted the facts, and, therefore, the court should have determined whether they showed willful neglect, and that this question should not have been left to the jury. The question of negligence is a mixed one of law and fact. If disputed, it is the province of the jury to find the degree; if undisputed, the court determines it. (L. & N. R. Co. v. Collins, 2 Duvall, 114.) If it be questionable in a case where this duty rests, it should be left to the jury. In this case, however, the appellant was not prejudiced by leaving the character of the negligence to the jury, because, if the court had determined it, it would have been bound, upon the facts of the case, to have found it to have been willful.
We do not feel at liberty to disturb the verdict upon the score that it is excessive. The deceased, it *50is true, was unconscious from the time of the accident until his death. But no person can tell the extent of his physical and mental suffering; it was voiceless, save in the way of moan. It was the province of the jury to fix the damages. They had a right not only to find damages by way of compensation for the suffering from the time of the infliction of the injury until death, but to also award such exemplary damages as, under the circumstances, they saw fit. Having the right to award both, we can not undertake to say that the verdict is so excessive as to authorize a reversal.
The judgment is, therefore, affirmed.