CO Code § 13-21-201 (2021)
2021 Colorado Code|Title 13 - Courts and Court Procedure|Article 21 - Damages|Part 2 - Damages for Death by Negligence|§ 13-21-201. Damages for Death

  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:   In the first year after such death:   By the spouse of the deceased;    Upon the written election of the spouse, by the spouse and the heir or heirs of the deceased;    Upon the written election of the spouse, by the heir or heirs of the deceased; or    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, C.R.S., 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;         In the second year after such death: (b) (I) In the second year after such death:   By the spouse of the deceased;    By the heir or heirs of the deceased;    By the spouse and the heir or heirs of the deceased; or    By 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, and the heir or heirs of the deceased.       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.         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. (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.    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.    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.       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.       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.     History. Source: G.L. § 877. G.S. § 1030. L. 07: P. 296, § 1. R.S. 08: § 2056. C.L. § 6302. CSA: C. 50, § 1. L. 51: P. 338, § 1. CRS 53: § 41-1-1 . C.R.S. 1963: § 41-1-1 . L. 88: (1)(a), (1)(b), and (1)(c) R&RE and (2) amended, pp. 603, 604, §§ 1, 2, effective July 1. L. 2000: (1)(c) amended and (1)(d) added, p. 169, § 1, effective July 1. L. 2009: (1) amended,(HB 09-1260), ch. 107, p. 441, § 6, effective July 1.    Cross references:   For determination of death, see § 12-240-140 .   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.   A. In General.    B. Damages.       II. WHO MAY RECOVER.    III. DEFENSES.   A. In General.    B. Negligence Required.    C. Contributory Negligence.        I. GENERAL CONSIDERATION.   A. In General.   Law reviews. For article, “Double Recovery for Wrongful Death by Public Carrier?”, see 28 Dicta 131 (1951). For comment on McEntyre v. Jones, appearing below, see 31 Dicta 198 (1954). For article, “Damages for Death -- Limited or Unlimited”, see 34 Dicta 32 (1957). For article, “In Defense of the Colorado Guest Statute”, see 35 Dicta 174 (1958). For note, “Notes and Comments: What is a Life Worth?”, see 34 Dicta 41 (1957). For article, “One Year Review of Torts”, see 38 Dicta 93 (1961). For note, “Wrongful Death in Colorado”, see 33 Rocky Mt. L. Rev. 393 (1961). For comment on Clint v. Stolworthy appearing below, see 33 Rocky Mt. L. Rev. 443 (1961). For note, “Personal Injury Damages in Colorado”, see 35 U. Colo. L. Rev. 332 (1963). For comment on Herbertson v. Russell appearing below, see 35 U. Colo. L. Rev. 463 (1963). For comment, “Preconception Torts”, see 48 U. Colo. L. Rev. 621 (1977). For case note, “Wrongful Death Recovery in Colorado -- A Reward for a Timely Demise”, see 49 U. Colo. L. Rev. 431 (1978). For article, “Measures of Economic Loss in the Wrongful Death of a Child”, see 14 Colo. Law. 392 (1985). For case note, “The Fetus as a Person in Wrongful Death Actions”, 57 U. Colo. L. Rev. 895 (1986). For article, “Sitting Pretty in Probate: What Sandstead Means for Probate Jurisdiction”, see 48 Colo. Law. 50 (Jan. 2019).   The statute is constitutional. Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 5 Colo. App. 321, 38 P. 850 (1894).   All the provisions of the act are clearly expressed in the title. Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 23 Colo. 259 , 47 P. 266 (1894).   Purpose of the wrongful death statute is to compensate those who sustain pecuniary injury by the loss of the life of a spouse or parent. Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983 ).   This section largely extends the right of recovery for injuries resulting in the death of the injured party against the surviving wrongdoer, and specifically makes it applicable to transportation companies, and designates the persons who are entitled to bring suits, and who may reap the benefits of the recovery. It does not in terms cause the action against the wrongdoer to survive, for it is silent on the subject. Letson v. Brown, 11 Colo. App. 11, 52 P. 287 (1898).   This section creates a new cause of action. Denver & R. G. R. R. v. Frederic, 57 Colo. 90 , 140 P. 463 (1914); Lindsay v. Chicago, B & Q. R. R., 226 F. 23 (7th Cir. 1915); Taylor v. Welle, 143 Colo. 37 , 352 P.2d 106 (1960).   Right of action does not depend on whether injured person could have recovered. That the right of action under this section does not depend upon whether the injured person, if death had not ensued, could have recovered for personal injury, is one of the essential characteristics which distinguishes it from §§ 13-21-202 and 13-21-203 , where the right exists only on the theory that the person injured would have had a cause of action had he not been killed. Denver & R. G. R. R. v. Frederic, 57 Colo. 90 , 140 P. 463 (1914).   Such action did not exist at common law. No right of action for damages resulting from death through wrongful act or negligence was given by the common law, and such right exists only by virtue of this section. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).   Wrongful death recovery did not exist at common law, but is purely a creature of statute. Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983 ); Hale v. Morris, 725 P.2d 26 (Colo. App. 1986).   This section must be strictly construed. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955); Estate of Kronemeyer v. Meinig, 948 P.2d 119 (Colo. App. 1997).   The judiciary should adhere to its previous constructions of this act. Where the general assembly has repeatedly reenacted this article which has received settled judicial construction, there can be no doubt that the legislative intent was that such reenactments continue to be construed in accordance with such former judicial construction. Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   This section with §§ 13-21-202 , 13-21-203 , and 13-21-204 must be construed as one act, and each section construed as it is connected with and related to the whole act. Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960).   It is penal in character. Denver & R. G. R. R. v. Frederic, 57 Colo. 90 , 140 P. 463 (1914); Denver & R. G. R. R. v. Clint, 235 F.2d 445 (10th Cir. 1956); Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960).   It manifests a purpose to compensate dependent relatives. The statute must be construed in the light of its purpose, and while it is penal in character, the fact that the forfeiture or penalty is recoverable by the kin of the deceased manifests a purpose to in a measure protect or compensate dependent relatives by blood or direct marriage. Myers v. Denver & R. G. R. R., 61 Colo. 302 , 157 P. 196 (1916).   Recovery may be had under the section without any proof whatever of damages. Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960).   A wrongful death claim is not assignable. Espinosa v. Perez, 165 P.3d 770 (Colo. App. 2006).   The section may be divided with reference to persons injured, into two parts; The first giving the right of action to any person injured by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, etc.; the second furnishing a right of action where the death of the passenger resulted from a defect or insufficiency of a railroad locomotive, stage coach, or other public conveyance. Atchison, T. & S. F. R. R. v. Headland, 18 Colo. 477 , 33 P. 185 (1893).   Impact not required in negligence claim against common carrier. There is no impact requirement for claims which allege negligence on the part of a common carrier. Deming v. Kellogg, 41 Colo. App. 264, 583 P.2d 944 (1978).   A second civil action against treating physicians for wrongful death is prohibited where plaintiffs previously settled a wrongful death action against the driver that struck pedestrian. The plain language of this section clearly and unambiguously reflects the intent of the general assembly to permit only one wrongful death action for the death of one decedent. Estate of Kronemeyer v. Meinig, 948 P.2d 119 (Colo. App. 1997).   Passenger elevators in office buildings are included within the term “other public conveyance” as used in this section. Davis v. Colo. Sav. Bank, 78 Colo. 509 , 242 P. 985 (1926).   Station agent may be an employee managing train. The station agent of a railroad company charged with the duty to communicate to the conductor and engineer of the several trains the orders of the train dispatcher as to where they are to pass other trains, is managing the trains, within the meaning of this section. If by his negligent failure to deliver an order, a collision occurs, and the death of a passenger results, the railway company is liable. Whittle v. Denver & R. G. R. R., 51 Colo. 382 , 118 P. 971 (1911).   “Any person” does not include servant injured by negligence of fellow-servant. The rule of the common law, that the servant assumes all the ordinary risks of the service upon which he enters, including those risks which arise from the negligence of other servants of the same master in the same employment, is not abrogated by this section, and the words “any person” do not include servants of the same master injured by the negligence of a fellow-servant while acting in the common employment. Atchison, T. & S. F. R. R. v. Farrow, 6 Colo. 498 (1883).   Subsection (2) refers to statute of descent and distribution in effect at time section is applied. In re Arrington v. Arrington, 618 P.2d 744 (Colo. App. 1980).   Statute as basis for jurisdiction. See First Nat'l Bank v. Rostek, 182 Colo. 437 , 514 P.2d 314 (1973); Ellerman v. Amax, Inc., 194 Colo. 392 , 572 P.2d 836 (1977).   Applied in Berry Constr., Inc. v. Indus. Comm'n, 39 Colo. App. 251, 567 P.2d 806 (1977); Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981); in re Estate of Daigle, 634 P.2d 71 (Colo. 1981).   B. Damages.   There is no absurdity in a legislative decision to authorize in effect an award of different amounts depending on whether an insured is injured or killed in an accident. Kline v. Am. States Ins. Co., 924 P.2d 1150 (Colo. App. 1996).   The amount of recovery under this section depends on the degree of culpability of the defendant. Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960).   It is exclusively the province of the jury to estimate and assess the damages, and the amount to be allowed in such cases rests largely in their sound discretion. Dawkins v. Chavez, 132 Colo. 61 , 285 P.2d 821 (1955).   Funeral expense is an item of recovery under the wrongful death statute, but in no event can recovery exceed the amount provided by statute. McEntyre v. Jones, 128 Colo. 461 , 263 P.2d 313 (1953); Kling v. Phayer, 130 Colo. 158 , 274 P.2d 97 (1954); Espinoza v. Gurule, 144 Colo. 381 , 356 P.2d 891 (1960).   Funeral expenses may be recovered by the parents of a deceased child in an action independent of this article where an alleged financial loss results to parents from negligence on the part of another. Espinoza v. Gurule, 144 Colo. 381 , 356 P.2d 891 (1960).   This section's remedy is not exclusive. While funeral expenses are recoverable in an action under this article, the remedy provided therein is not exclusive. Espinoza v. Gurule, 144 Colo. 381 , 356 P.2d 891 (1960).   Federal civil rights claim for damages under 42 U.S.C. § 1983 cannot be limited by Colorado's survival statute, § 13-20-101 , or this section. White v. Talboys, 573 F. Supp. 49 (D. Colo. 1983 ).   For damages resulting from a wrongful death accident, see Kling v. Phayer, 130 Colo. 158 , 274 P.2d 97 (1954).   II. WHO MAY RECOVER.   The paragraphs of subsection (1) are intended to take rank and have effect in the order in which they occur, and their true meaning may be stated in this way: If the deceased leave a husband or wife, the sole right of action will be in such survivor, save that, as against children, the right will be lost unless asserted by suit within one year; but if there be no surviving husband or wife, or the survivor fails to sue within one year, then the sole right of action will be in the children; and if there be no surviving husband or wife, nor any child, then, and then only, will the right of action be in the father and mother, or the survivor of them. The first subdivision does not make the right of the husband or wife dependent upon the majority of the deceased, nor does the second make the right of the children dependent upon his majority or upon his being married at the time of his death; and as the third is evidently designed to take rank and have effect in subordination to the other two, we think it should be interpreted as if it read: “If such deceased be a minor or unmarried, and leave no surviving husband or wife and no surviving child, then by the father and mother”. In no other way can the three subdivisions be completely harmonized without violating the sense of the statute as a whole. Hopper v. Denver & R. G. R. R., 155 F. 273 (8th Cir. 1907); Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960).   No one can invoke this section except the class of persons listed in the subdivisions. The wrongful death statute cannot be invoked where deceased is not survived by a husband or children, nor a father or mother, to which the statute limits such an action. Kling v. Phayer, 130 Colo. 158 , 274 P.2d 97 (1954).   This act makes no distinction between citizens and aliens, residents, and nonresidents; and public policy does not require the making of any such discrimination. Indeed, the policy of the state would seem to require that no such discrimination should be made. Patek v. Am. Smelting & Ref. Co., 154 F. 190 (8th Cir. 1907); Ferrara v. Auric Mining Co., 43 Colo. 496 , 95 P. 952 (1908).   The right to sue is vested, in the first instance, in the surviving husband or wife to the exclusion of all others; and the existence of the right in the second class named is wholly dependent upon the fact that there be neither husband nor wife surviving, or that he or she shall have waived the right by failing to sue in the time prescribed; thus evincing an intention on the part of the law-making power to confer the right of action upon the second class, only in the event the decedent, at the time of death, was, or had been, a married person, and should leave surviving lineal descendants. Hindry v. Holt, 24 Colo. 464 , 51 P. 1002 (1897); Hahn v. Union P. R. R., 162 F. Supp. 558 (D. Colo. 1958 ); Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960).   The surviving spouse has the exclusive right to bring the action within the first year from the date of death. Peck v. Taylor, 38 Colo. App. 90, 554 P.2d 698 (1976); Campbell v. Shankle, 680 P.2d 1352 (Colo. App. 1984).   The sole right to bring an action for wrongful death within the first year after the death is with the surviving husband or wife. Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983 ).   Surviving spouse is authorized to sue in his or her own name without joining decedent's children, who are real parties in interest. Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974).   This section does not limit the widow's cause of action to one year. Hayes v. Williams, 17 Colo. 465 , 30 P. 352 (1892); Hahn v. Union P. R. R., 162 F. Supp. 558 (D. Colo. 1958 ).   It simply declares that if she does not sue within that time the heirs may bring an action. Hahn v. Union P. R. R., 162 F. Supp. 558 (D. Colo. 1958 ).   When spouse may sue after first year. If the spouse does not sue within the first year, the heir or heirs may bring an action during the second year, but, if the heirs have not instituted proceedings, the spouse can maintain an action at any time before the expiration of the two years. Peck v. Taylor, 38 Colo. App. 90, 554 P.2d 698 (1976) expressly disapproved in Pub. Serv. Co. v. District Court, 674 P.2d 383 (Colo. 1984)); Murphy v. Colo. Aviation, Inc., 41 Colo. App. 237, 588 P.2d 877 (1978).   In general the spouse's right to maintain an action continues throughout the two years. Peck v. Taylor, 38 Colo. App. 90, 554 P.2d 698 (1976).   The real purpose of this section was simply to give the surviving wife or husband preference during the first year; but not to estop her or him from maintaining an action at any time before the expiration of the second year. Peck v. Taylor, 38 Colo. App. 90, 554 P.2d 698 (1976).   Children may bring suit within the first year only if there is no surviving spouse. Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983 ).   A surviving spouse's earlier settlement of a wrongful death claim precludes an heir's subsequent wrongful death claim. Barnhart v. Am. Furniture Warehouse Co., 2013 COA 158 , 338 P.3d 1027.   Action by spouse and daughter as coplaintiffs. A wrongful death action instituted the second year after the death by both the surviving spouse and the daughter as coplaintiffs can be maintained by both plaintiffs. Peck v. Taylor, 38 Colo. App. 90, 554 P.2d 698 (1976).   An action filed by both surviving spouse and daughter does not operate against the interests of either. Consequently, since the purpose of the statute is to compensate those who sustain pecuniary injury by the loss of the life of a spouse or parent, retention of both husband and daughter as parties plaintiff is proper. Peck v. Taylor, 38 Colo. App. 90, 554 P.2d 698 (1976).   This section requires proportionate division among the heirs when a widow obtains a judgment. Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960).   When multiple plaintiffs bring a wrongful death action and the plaintiffs only seek damages for noneconomic losses, each plaintiff does not need to establish that he or she personally suffered damages for noneconomic losses to remain a party to the action. Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977 (Colo. App. 2011).   Presumption that spouse will make good faith effort to represent rights of decedent's children. Implicit in this statute is a presumption that the surviving spouse will make a good faith effort to represent adequately the rights of all decedent's children, regardless of whether the surviving spouse is their natural parent. Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974).   Insurance companies have no common law duty to assure distribution of settlement proceeds. Where insurers distributed settlement proceeds to the surviving spouse in a wrongful death action, the insurers satisfied their statutory duty and are not required to monitor the distribution of the proceeds to all potential beneficiaries. Campbell v. Shankle, 680 P.2d 1352 (Colo. App. 1984).   Heirs preempted if spouse sues. A spouse, having elected to sue pursuant to this section, preempts the heirs at law from ever bringing a subsequent action. Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974).   Heirs at law have proprietary interest in judgment resulting from the lawsuit in accordance with the applicable rules of descent and distribution. Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974).   What their right to sue depends on. The right to sue of the heirs (interpreted as lineal descendants for the purposes of this portion of the statute) depends on either there being no surviving spouse or on the spouse's not having sued during the first year. Peck v. Taylor, 38 Colo. App. 90, 554 P.2d 698 (1976).   Intervention by heirs if spouse elects to abandon cause. Where the surviving spouse sues under this section and subsequent thereto elects to abandon the litigation against the wishes of the other heirs at law, they are entitled to intervene pursuant to C.R.C.P. 24(a)(2), for the purpose of continuing the litigation. Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974).   General assembly did not intend to grant exclusive control of litigation to spouse where there is a showing of inadequate representation of decedent's children's rights. Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974).   Automatic intervention by parties represented by spouse contrary to section's intent. To allow all parties whose interests are represented by the surviving spouse an automatic right of intervention in pending litigation would be contrary to the intent of the statute vesting the surviving spouse with the exclusive right to sue and would result in confusion and controversy in litigating a wrongful death action. Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974).   The words “heir or heirs”, in the second paragraph of subsection (1), mean child or children, that is, lineal descendants. Hindry v. Holt, 24 Colo. 464 , 51 P. 1002 (1897); Hopper v. Denver & R. G. R. R., 155 F. 273 (8th Cir. 1907); Grogan v. Denver & R. G. R. R., 56 Colo. 450 , 138 P. 764 (1914); Rocky Mt. Fuel Co. v. Kovaics, 26 Colo. App. 554, 144 P. 863 (1914); Page v. Elwell, 81 Colo. 73 , 253 P. 1059 (1927); Blom v. United Air Lines, 152 Colo. 486 , 382 P.2d 993 (1963); McGill v. GMC, 174 Colo. 388 , 484 P.2d 790 (1971); Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974); McCord v. Affinity Ins. Group, Inc.,13 P.3d 1224 (Colo. App. 2000).   The term “heirs” as used in this section refers only to lineal descendants of the deceased and does not include the deceased's parents. Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo. 1997).   An adult adoptee is a lineal descendant of a decedent, and therefore an “heir”. Ferguson v. Spalding Rehab., LLC, 2019 COA 93 , 456 P.3d 59.   Heirs do not include brothers and sisters of deceased. Hindry v. Holt, 24 Colo. 464 , 51 P. 1002 (1897), distinguishing Denver S. R. & P. R. R. v. Wilson, 12 Colo. 20 , 20 P. 340 (1888); Grogan v. Denver & R. G. R. R., 56 Colo. 450 , 138 P. 764 (1914); Blom v. United Air Lines, 152 Colo. 486 , 382 P.2d 993 (1963); Ablin v. Richard O'Brien Plastering Co., 885 P.2d 289 (Colo. App. 1994).   Sister cannot recover. This section does not provide for a cause of action by a deceased minor's sister. Sager v. City of Woodland Park, 543 F. Supp. 282 (D. Colo. 1982 ).   Under this section the parents of an unmarried adult are entitled to recover their pecuniary loss resulting from his death from the negligence of another. Denver, S. P. & P. R. R. v. Wilson, 12 Colo. 20 , 20 P. 340 (1888).   Decedent's parents may not bring a wrongful death action if there is a surviving child of the deceased. Pub. Serv. Co. v. District Court, 674 P.2d 383 (Colo. 1984).   Plaintiff may bring a cause of action that would have belonged to the decedent had he survived. A claim that could have been brought by a plaintiff on behalf of a minor decedent if he had survived is barred unless brought under the wrongful death act. Hale v. Morris, 725 P.2d 26 (Colo. App. 1986).   “Father or mother” should be read “father and mother”. The true reading of the words “father or mother” in the third paragraph is “father and mother”; such is the language of the first official publication; and such is the language of the enrolled bill in the office of the secretary of state. Pierce v. Conners, 20 Colo. 178 , 37 P. 721 (1894); Hopper v. Denver & R. G. R. R., Co., 155 F. 273 (8th Cir. 1907).   The legislature did not bar or reduce recovery for parents, who have abandoned, deserted or failed to support a child under this section. Therefore, subsection (1)(c) allows both parents to share equally in any judgment and does not require a parent to have a close relationship with the deceased child. Brill v. Hughes, 958 P.2d 529 (Colo. App. 1998).   Father and mother may be joined. Under this section, if the deceased was a minor, the father and mother may join in the suit and each shall have an equal interest in the judgment; but the joining of the father and mother is permissive, not imperative; either may sue alone. Pierce v. Conners, 20 Colo. 178 , 37 P. 721 (1894); Phillips v. Denver City Tramway Co., 53 Colo. 458 , 128 P. 460 (1912).   Even after judgment or review. A parent not joined, but entitled to join, in a suit under this section may be made a party on his or her application at any time, even after judgment or after review in an appellate court, for the purpose of protecting the interest which he or she may have in the judgment. Pierce v. Conners, 20 Colo. 178 , 37 P. 721 (1894); Phillips v. Denver City Tramway Co., 53 Colo. 458 , 128 P. 460 (1912).   The joinder or nonjoinder of a parent is material only to the parents themselves; the defendant cannot be prejudiced by the nonjoinder of one of them; the measure of recovery is the same whether the action be brought in the name of one or both; the defendant can only be subjected to a single suit. Pierce v. Conners, 20 Colo. 178 , 37 P. 721 (1894).   “Unmarried” is not limited to those who have never been married. The great weight of authority as to the meaning of the word “unmarried”, as defined by lexicographers and law writers, and as construed by courts, includes within the term not only those who have not been married, but who are at the time unmarried. Myers v. Denver & R. G. R. R., 61 Colo. 302 , 157 P. 196 (1916).   Deceased's marital status is determined at time of death. Deceased woman was married at the time of her death. Prior to filing suit, her husband died without heirs. Woman's parents lacked standing to bring wrongful death action because under this statute parents of a deceased adult may bring a wrongful death action only if the deceased is unmarried and without descendants. Hansen v. Barron's Oilfield Serv., Inc., 2018 COA 132 , 429 P.3d 101.   Parents have right to support and maintenance from children. As a matter of sentiment, life has no pecuniary value, but considered with reference to the relations of deceased with others, it is capable of such estimate. In this sense a parent is entitled to the services of children during their minority, and to support and maintenance from them in his declining years. Dawkins v. Chavez, 132 Colo. 61 , 285 P.2d 821 (1955).   Parent need not show deceased child's pecuniary value to them. It is not necessary for a husband and wife, in order to recover for the death of an adult child, to prove loss of food, clothing, shelter, or care which may be measured in dollars and cents. The court may consider the loss of a legal obligation for future financial support, bodily care, and intellectual care. Stevens v. Strauss, 147 Colo. 547 , 364 P.2d 382 (1961).   The mental, moral, and physical characteristics of the child must be considered as well as the expectation of life in determining the pecuniary aid which she would probably give to the parents and the probable future earning capacity of the child. Stevens v. Strauss, 147 Colo. 547 , 364 P.2d 382 (1961).   Adoptive parent cannot recover when one over 21 is adopted. Where one over the age of 21 years is adopted as an heir-at-law by another person, such adoptive parent is without legal status to maintain action under the wrongful death statute for the death of such adopted person. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).   An equitably adopted child is not an “heir” for purposes of this section. Herrera v. Glau, 772 P.2d 682 (Colo. App. 1989).   Parents of child who is married and of age have no cause. Under the wrongful death statute the parents of a child who is both married and of age at the time of his death have no standing to maintain such an action. McGill v. GMC, 174 Colo. 388 , 484 P.2d 790 (1971).   Parents of child who was married and of age have no cause of action. Further, parents cannot represent purported common-law widow because they have adverse interests to such widow. Potter v. Thieman, 770 P.2d 1348 (Colo. App. 1989).   Court's decision that overrules prior case law by precluding any claim for relief by a surviving spouse commenced after the first anniversary of the spouse's death need not be applied retroactively if it creates an injustice and hardship in the case at bar. Williams v. Trailmobile, Inc., 745 P.2d 267 (Colo. App. 1987) (decided prior to 1988 amendment repealing and reenacting paragraphs (a) to (c) of subsection (1)).   If surviving spouse fails to sue, the spouse loses not only the right to sue, but the right to share in the proceeds of any award made to the children. Landsberg v. Hutsell, 837 P.2d 205 (Colo. App. 1992) (decided under law in effect prior to the 1988 amendment repealing and reenacting paragraphs (a) to (c) of subsection (1)); Champlin v. Burlington N. Santa Fe Corp., 385 F. Supp. 2d 720 (N. Dist. Ill. 2005).   Where divorced parents' son was killed in an automobile accident, and each parent had a separate policy applicable to the accident that provided up to $100,000 for damages arising from an accident involving an underinsured motor vehicle, and the driver's policy had a liability limit of $100,000, the driver was obligated to pay $50,000 to each parent. As a result, for purposes of each parent's policy, $50,000 was paid to a person “other than an insured injured person in the accident”, namely, the other parent. Hence, the driver's vehicle was underinsured under the terms of each policy. Under the provisions of this section, each parent could recover up to $75,000 in uninsured motorist (UIM) benefits, and insurer was potentially liable under each parent's UIM policy for such amount. Kline v. Am. States Ins. Co., 924 P.2d 1150 (Colo. App. 1996).   III. DEFENSES.   A. In General.   Person riding freight train without paying fare is not a passenger. A person who is riding upon a freight train without paying fare, and after having been refused permission to ride by the conductor, is not a passenger within the meaning of this section. Atchison, T. & S. F. R. R. v. Headland, 18 Colo. 477 , 33 P. 185 (1893).   The fact that deceased was riding on free pass is no defense. In an action under this section, it is no defense to the action that the deceased was riding upon a free pass, stipulating that the passenger “assumes all risks of accident and the company shall not be liable, under any circumstances, whether of negligence by its agents or others”. Denver & R. G. R. R. v. Frederic, 57 Colo. 90 , 140 P. 463 (1914).   Pass is properly excluded as evidence. From the nature, purposes, and objects of this section, it is manifest that the cause of action is one in which the deceased had no interest at all, and from the liability for which he could not relieve the company by a contract with it. It, therefore, follows that a free pass, and the contract included in it, offered in evidence is incompetent and immaterial, and is properly excluded. Denver & R. G. R. R. v. Frederic, 57 Colo. 90 , 140 P. 463 (1914).   Section not applicable when decedent killed by police. This and § 13-21-202 entitle certain classes of survivors of a person killed to damages in the manner and to the extent prescribed but do not apply in an action by a wife to recover against bondsmen of public peace officers who killed her husband. People ex rel. Putnum v. United States Fid. & Guar. Co., 99 Colo. 64 , 59 P.2d 796 (1936).   Rights not waived by claim under workmen's compensation act. The general proposition that a person who has a cause of action against a third party tortfeasor for damages for wrongful death or injury does not lose or waive it by exercising another right based on a claim for workman's compensation is settled beyond dispute in this jurisdiction. Drake v. Hodges, 114 Colo. 10 , 161 P.2d 338 (1945).   Guest statute (repealed § 42-9-101 ) limited recovery under the wrongful death act. There being no recovery for death except under the provisions of the wrongful death statute, and the guest statute specifically precluding recovery for death except under the conditions therein specified, the guest statute was held to apply to and limit recovery under the wrongful death statute. Taylor v. Welle, 143 Colo. 37 , 352 P.2d 106 (1960).   B. Negligence Required.   Negligence must be affirmatively established by a preponderance of the evidence. It is well established that in a case of this kind the plaintiff is not entitled to recover unless the negligence of the defendant is affirmatively established by a preponderance of the evidence. Denver & R. G. R. R. v. Ryan, 17 Colo. 98 , 28 P. 79 (1891).   Accident caused by defect in road or machinery, or carelessness of defendant's agents, is prima facie evidence of negligence, and the defendant must establish affirmatively that no negligence existed on its part. Kansas Pac. Ry. v. Miller, 2 Colo. 442 (1874).   Construction of new bridge in different manner is not admission of negligence. In action by administrator for injuries resulting in the death of his intestate, by the subversion of a bridge on defendant's railway, by which the train wherein intestate was traveling was wrecked, it was held that the subsequent construction of a new bridge over the same channel, in a different manner, amounted to an admission that the former one was improperly constructed, but not that these defects were attributable to negligence. Kansas Pac. Ry. v. Miller, 2 Colo. 442 (1874).   Evidence as to health, age, earning capacity, and contributions of deceased is inadmissible. Because of the penal character of this section, and the rights of the plaintiffs and the liability of the defendant as therein defined, evidence showing the character, habits, health, age, and earning capacity of the deceased, and the contributions by him to the support of his parents, was inadmissible. Denver & R. G. R. R. v. Frederic, 57 Colo. 90 , 140 P. 463 (1914).   Presumption of negligence may be rebutted. If a railroad car is overturned, and a passenger in consequence is killed, a presumption arises that the casualty was the result of negligence, but this presumption may be rebutted by the company, by showing that the accident itself was such that human prudence and foresight could not have guarded against it. Denver Ry. v. Woodward, 4 Colo. 1 (1877).   C. Contributory Negligence.   Contributory negligence of decedent bars wrongful death action. Where a driver of an automobile with ample opportunity to observe an oncoming train at a highway crossing, either failed to look or having looked failed to see the approaching train, he was guilty of contributory negligence, constituting a proximate cause of the accident, and recovery for wrongful death was barred. Union P. R. R. v. Larson, 153 Colo. 354 , 386 P.2d 583 (1963).   Contributory negligence on the part of the person entitled to recover is a defense to an action brought under this section or § 13-21-202 . Willy v. Atchison, T. & S. F. Ry., 115 Colo. 306 , 172 P.2d 958 (1946).   Contributory negligence of infant's father is not imputable to mother. Where husband and wife unite as joint plaintiffs in an action for the death of a child, the negligence of the husband contributing to the death is not to be imputed to the wife, unless in the acts producing the injury, he was acting as her agent, or they were jointly engaged in the prosecution of a common enterprise. If the father is convicted of contributory negligence, the jury may ascertain the amount to be awarded to the mother. Phillips v. Denver City Tramway Co., 53 Colo. 458 , 128 P. 460 (1912).   Issues of negligence and proximate cause to be determined by trier of fact. In an action for wrongful death of a child, where the issues of primary negligence, contributory negligence, and proximate cause presented clearly disputed issues of fact, findings made by the trier of facts on such disputed evidence will not be disturbed on review if supported by credible evidence. Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   Instruction as to duty to look and listen permissible. The learned judge who presided at the trial very properly charged the jury that, “as a matter of law it is negligence and carelessness for a person to go, stand, or be upon the track of a railroad without keeping watch both ways for trains”; and further, that it was the duty of deceased in going upon the track of the defendant company “to look and listen for the approach of trains and observe the surroundings”, and that if he failed so to do, it was negligence on his part. Denver & R. G. R. R. v. Ryan, 17 Colo. 98 , 28 P. 79 (1891).