12 P. 582 (Kan. 1887), Rush v. Missouri Pac. Ry. Co.

Citation:12 P. 582, 36 Kan. 129
Opinion Judge:VALENTINE, J.:
Party Name:MARY A. RUSH, as Administratrix of the estate of Michael O'Connor, deceased, v. THE MISSOURI PACIFIC RAILWAY COMPANY
Attorney:J. D. McCleverty, and McClure & Austin, for plaintiff in error. W. C. Perry, and David Kelso, for defendant in error.
Judge Panel:VALENTINE, J. All the Justices concurring.
Case Date:January 07, 1887
Court:Supreme Court of Kansas
 
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Page 582

12 P. 582 (Kan. 1887)

36 Kan. 129

MARY A. RUSH, as Administratrix of the estate of Michael O'Connor, deceased,

v.

THE MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Kansas

January 7, 1887

Error from Bourbon District Court.

ACTION brought under § 422 of the civil code, by Mary A. Rush, as administratrix of the estate of Michael O'Connor, deceased, against The Railway Company, to recover $ 10,000 damages for wrongfully and negligently causing the death of said decedent. Trial at the December Term, 1884, and judgment for the defendant. The plaintiff brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

J. D. McCleverty, and McClure & Austin, for plaintiff in error.

W. C. Perry, and David Kelso, for defendant in error.

VALENTINE, J. All the Justices concurring.

OPINION

[36 Kan. 130] VALENTINE, J.:

This was an action brought in the district court of Bourbon county, under § 422 of the civil code, by Mary A. Rush, administratrix of the estate of Michael O'Connor, deceased, to recover damages against the Missouri Pacific Railway Company for wrongfully and negligently causing the death of the deceased. The damages sought to be recovered are claimed for the benefit of Michael O'Connor Sr., the father and next of kin to the deceased. The deceased had been in the employment of the defendant railway company, as yard switchman, at Fort Scott, Kansas, for

Page 583

some two or three months prior to the accident which caused his death. On March 18, 1884, in pursuance of an order given to him by E. W. Head, the yard master, he went with the switch engine, No. 45, to place a car upon the track of the St. Louis, Fort Scott & Wichita railroad. After throwing open the connecting switch of the two roads, he walked along the side of the engine and [36 Kan. 131] cars for the purpose of uncoupling a defective car from the engine and placing it at a point designated by the yardmaster. While performing this duty he stepped upon the track, and between the cars, and while attempting to remove the coupling-pin his foot was caught and fastened between the main rail and the guard rail, so that he was unable to extricate it, and the cars, being at the time in motion, passed over his body and instantly killed him. There was no blocking or other protection between the main rail and the guard rail for the purpose of preventing such an accident. At the time of his death, O'Connor was 25 years old, healthy, temperate, strong, and a competent and careful railroad man, and was receiving wages at the rate of $ 50 per month from the railway company. He was unmarried, and his father, who survived him, was the next of kin to him. This suit was brought by his administratrix for his father's benefit. His father is about 67 years old, has no property, is unable to support himself, and was mainly dependent upon his son for his maintenance. From the time the deceased was 15 years old up to the time of his death, one-half of his earnings were given for the support of his father. The case was tried by the court and a jury. After the plaintiff had submitted all her evidence to the jury, the defendant interposed a demurrer thereto, on the ground that the same did not prove a cause of action; which demurrer was overruled by the court. Thereafter the defendant introduced its evidence to the jury, and among other things introduced evidence tending to show that the failure to block between the main rail and the guard rail was not an act of negligence, and that such failure did not increase the danger of the employes; and also introduced evidence tending to show that many railroads, including that of the defendant, did not use any such protection. After the introduction of all the evidence on the part of the plaintiff and the defendant, the court instructed the jury to find a verdict for the defendant, which was accordingly done, and to which instruction the plaintiff duly excepted, and thereafter filed a motion...

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