Sullivan v. Missouri Pac. Ry. Co.

• Decision Date: 18 February 1889
• Parties: SULLIVAN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

10 S.W. 852

97 Mo. 113

SULLIVAN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

February 18, 1889.

1. DEATH BY WRONGFUL ACT — PLEADING — COMPLAINT.

A petition, in an action for the wrongful death of plaintiff's intestate, which sets out particularly the circumstances attending the killing, and alleges that his death was occasioned by the negligence of defendant's servants, while running, conducting, and managing a train of cars, is good, as against an objection to the introduction of evidence, that it fails to state any specific act of negligence.¹

2. MASTER AND SERVANT — INJURY TO EMPLOYE — CONTRIBUTORY NEGLIGENCE.

Plaintiff's intestate, a track hand, while standing on the track watching some men loading cars with a steam-shovel, was struck by the locomotive of a passenger train, which came around a curve, on a down grade, at the rate of from 20 to 35 miles per hour. Intestate could have seen the locomotive, and been seen by the train-men, for a distance of about 200 yards. A witness for plaintiff, who saw the locomotive distant about 150 yards, testified that no signal was given or effort made to stop the locomotive until intestate was struck. The fireman, who saw intestate when at a distance of 100 yards, and the engineer, who saw him at 50 yards, testified to signals and efforts to stop the locomotive. They also knew that men were working at this point on the road. Held, that it was proper to refuse to charge that plaintiff could not recover.

3. SAME — FELLOW-SERVANTS.

The engineer and firemen in charge of the passenger train were not fellow-servants of the section hand.²

4. DEATH BY WRONGFUL ACT — MEASURE OF DAMAGES.

Rev. St. Mo. § 2121, provides that "whenever any person shall die from any injury resulting from or occasioned by the negligence * * * of any servant or employe," while running a train of cars, his representatives may recover $5,000 damages, provided the person would have had a cause of action had death not resulted. A subsequent clause provides for damages when any passenger shall be injured by any defect or insufficiency in machinery, etc. Held, that the first clause is not limited to passengers, but also includes the case of an employe whose death is not occasioned by a fellow-servant.

5. DEPOSITIONS — CAUSE FOR TAKING — REVIEW OF OBJECTIONS.

The Missouri statutes relating to depositions provide that the facts authorizing the reading of a deposition may be established by the testimony of the deposing witness, or the certificate of the officer taking the same, and in some instances it is not necessary that the witness should reside out of the county where the trial is had. Held that, where the officer's certificate is not preserved on the record, the appellate court cannot review an objection that there is nothing to show that the witnesses were not within the jurisdiction of the court.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Thos. J. Portis and Adams & Bowles, for appellant. Warner, Dean & Hagerman and E. A. Andrews, for respondent.

BLACK, J.

The plaintiff is the widow of Patrick Sullivan. He was killed by a passenger train on the defendant's road, and she sued for and recovered $5,000 damages, basing her cause of action on section 2121, Rev. St., known as the second section of the damage act. The petition states that deceased was a track hand, his duties being that of a track walker over a section of the road; and it then proceeds to state "that while so engaged, on the 8th day of May, 1885, he was run upon, injured, and killed by the locomotive and cars of defendant, known as the morning Lexington train west, and resulting from or occasioned by the negligence of the officers, servants, or employes of defendant, while running, conducting, or managing said locomotive and train of cars; that the said train was out of time, and under the control and management of one Fitzgerald as conductor, and one O'Donnell as engineer, — all at or near Rock creek, in said county and state aforesaid, on the line of defendant's railway."

1. The objection to the petition, made by way of an objection to the introduction of any evidence, seems to be that it does not state any specific act of negligence; and in support of this position we are cited to Gurley v. Railway Co., 93 Mo. 445, 6 S. W. Rep. 218. The rule of that case is that it is good and sufficient pleading to set out and describe the acts done with a reasonable degree of particularity, and then allege that they were negligently done. In this case the petition sets out circumstances as a matter of inducement to the unnecessary extent of stating the names of the conductor and engineer in charge of the train. It states that Sullivan was run upon and killed by the designated train, and that his death was occasioned by the negligence of the defendant's servants while running, conducting, and managing the locomotive and train of cars. The petition is clearly within the rule of the case before cited. It would be good as against a demurrer making this specific objection, and, that being so, it is certainly good as against an objection made to the introduction of any evidence, after answer and on trial of the cause.

2. It is next insisted that the court erred in refusing to instruct the jury that upon the pleading and evidence plaintiff could not recover. The evidence shows that deceased had been in the employ of the defendant for about 10 years. On the day in question he walked over his section of about four miles, and then back to a place where some men were loading a train of dirt cars with a steam-shovel. The dirt cars stood on a side track, and the shovel was some 30 or more feet to the north of the main track. Sullivan stood upon the north end of a tie of the main track, facing the shovel, with a wrench and spike-maul on his right shoulder. While in this position the passenger train going west came around a curve, hit, and killed him. At the time Sullivan was talking to some men, and was watching the shovel. The machinery and chains used in operating it made considerable noise, so that he evidently did not hear the coming train, nor did he see it. He could have seen it for a distance of about 200 yards, most of the witnesses say, and they say the engineer could have seen him for a like distance. The train was a regular west-bound train, about 10 to 20 minutes behind time, and going down...