16 S.W. 487 (Mo. 1891), Oates v. Union Pac. Ry. Co.

Citation:16 S.W. 487, 104 Mo. 514
Opinion Judge:Black, J.
Party Name:Oates, Appellant, v. The Union Pacific Railway Company
Attorney:Sherry & Hughes for appellant. John W. Beebe for respondent.
Case Date:May 25, 1891
Court:Supreme Court of Missouri

Page 487

16 S.W. 487 (Mo. 1891)

104 Mo. 514

Oates, Appellant,

v.

The Union Pacific Railway Company

Supreme Court of Missouri, First Division

May 25, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Sherry & Hughes for appellant.

The court erred in sustaining defendant's demurrer to plaintiff's petition, and the appellant cites the following authorities, to-wit: Dennick v. Railroad, 103 U.S. 11; Knight v. Railroad, 26 Am. & Eng. R. R. Cases, 485; Leonard v. Nav. Co., 84 N.Y. 48; Boyce v. Railroad, 18 N.W. 673; Morris v. Railroad, 23 N.W. 143; Railroad v. Lewis, 40 N.W. 401; Stoeckman v. Railroad, 15 Mo.App. 503; Cooley on Torts [2 Ed.] 266; Debevoise v. Railroad, 98 N.Y. 379; Railroad v. Doyle, 60 Miss. 977; Burns v. Railroad, 113 Ind. 169; Herrick v. Railroad, 31 Minn. 11; Scott v. Lord Seymour, 1 Hurl & C. 219; Bruce v. Railroad, 83 Ky. 174.

John W. Beebe for respondent.

(1) The court did not err in sustaining the demurrer. First. The petition on its face shows that the plaintiff had no cause of action, and especially so, as the only person having a cause of action at the time this suit was instituted was the personal representative, i. e., executor or administrator, of the deceased, and this is disclosed by the petition itself. 3 Wood, Railroad Law, sec. 413; City of Atchison v. Twine, 9 Kan. 350; Limkiller v. Railroad, 33 Kan. 83; Barker v. Railroad, 91 Mo. 86; Vawter v. Railroad, 84 Mo. 679; Shearman & Redfield on Negligence [4 Ed.] sec. 133. Second. The cause of action having arisen under the laws of Kansas could not, under any circumstances, be enforced in this state, as the statutes of Kansas and Missouri on the subject are essentially different. McCarthy v. Railroad, 18 Kan. 46; Railroad v. Lacy, 43 Ga. 461; Willis v. Railroad, 61 Tex. 432; Ash v. Railroad, 19 A. 643; Davis v. Railroad, 143 Mass. 301; Vawter v. Railroad, 84 Mo. 679; Rorer on Inter-State Law, secs. 158-163.

OPINION

[104 Mo. 515] Black, J.

The petition discloses these facts: The defendant, the Union Pacific Railway Company, owns and operates a railroad in the state of Kansas, which extends into this state. The defendant's servants carelessly and negligently ran a train of cars upon J. M. Oates at a point in the state of Kansas, inflicting injuries upon him from which he died the next day, namely, June 9, 1885. Oates was not...

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