Powell v. Union Pacific Railroad Company
| Decision Date | 03 March 1914 |
| Citation | 164 S.W. 628,255 Mo. 420 |
| Parties | MARIAN F. POWELL v. UNION PACIFIC RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.
Affirmed.
R. W Blair and Watson, Watson & Alford for appellant.
(1) Under the pleadings and evidence deceased Frederick Powell was shown not to be a passenger and the court should have directed a verdict for defendant. The clause in the pass which provided that the holder of said pass when using same should not occupy the relation of passenger and carrier was a valid stipulation and was a contract about a private and not a public matter, and no rule of public policy was violated by said clause. Railroad v. Adams, 192 U.S. 440; Santa Fe. P. & P. Co. v. Grant Bros., 33 S.Ct. 477; Long v. Railroad, 130 F. 870. (2) The clause in the contract providing that the holder of said pass when riding upon the same should not occupy the relation of passenger and carrier was a contract of private employment about a private matter, and where the public had no right to intervene, and the trial court denied to defendant such right of private contract, which is and was a property right, and in holding the contract contained in said pass void the court deprived defendant of its property without due process of law and denied to defendant the equal protection of the laws in violation of Sec. 1, 14 Amendment, U.S. Constitution. Railroad v. Adams, 192 U.S. 440; Santa Fe P. & P. Co. v. Grant Bros., 33 S.Ct. 477; Mathews v People, 202 Ill. 389, 63 L.R.A. 73; Pritchard v Norton, 106 U.S. 124. (3) The ruling of the trial court also violated Sec. 30, art. 2, Constitution of Missouri, in denying the validity of said contract of employment. Authorities cited above. (4) The court erred in excluding Sec. 8014, Gen. Statutes of Kansas, 1901, offered in evidence by defendant. This section adopted the common law in Kansas and as the alleged injury occurred in Kansas it was competent evidence as to the rule of law governing the parties to this suit. (5) The court erred in excluding the petition of plaintiff offered in evidence by defendant and which was filed in the district court of Washington county, Kansas, in December, 1909. This petition and section 420 of Statute of Kansas and case of Martin v. Railroad, 58 Kan. 475, offered in evidence, under which section said suit was instituted, constituted an admission that Frederick Powell, deceased, did not die as a result of the injuries claimed to have been received December 18, 1907. (6) The court erred in giving instruction number 1 asked by plaintiff. It assumes Frederick Powell died as a result of the injuries alleged to have been received December 18, 1907, and is too general and does not correctly state the law of Kansas, and does not define what elements go to make up the damages under the laws of Kansas. (7) The court erred in giving instruction number 2 given on behalf of plaintiff. Said instruction does not correctly state the law. It assumes the fact of a wreck raised not only a presumption of negligence, but of an injury as well, and casts upon defendant the burden of showing deceased did not die as a result of injuries received December 18, 1907, when the correct rule required the plaintiff to show Frederick Powell died as a result of the alleged injuries received as a direct result of appellant's negligence. Logan v. Railroad, 183 Mo. 582; Hipsley v. Railroad, 88 Mo. 347; Farwish v. Railroad, 102 Mo. 438. (8) The court erred in permitting the plaintiff to show over the objection and exception of appellant that there were cracked angle bars at points other than at the point of derailment of the train. George v. Railroad, 225 Mo. 398; Maloney v. Railroad, 108 Mo. 191.
Sherman & Landon and Sebree, Conrad & Wendorff for respondent.
(1) The deceased, Frederick Powell, was at the time he was injured a passenger and entitled to all the rights of a passenger. Hutchinson on Carriers (3 Ed.), secs. 997, 1073; Railroad v. Stevens, 95 U.S. 655; Railroad v. Lockwood, 17 Wall. 357; Railroad v. Derby, 14 How. 468; Kerkendall v. Railroad, 200 F. 197; Railroad v. Williams, 200 F. 207; Carroll v. Railroad, 88 Mo. 239; Cherry v. Railroad, 191 Mo. 518; Muldoon v. Street Railway, 22 L.R.A. 794; Railroad v. News Co., 151 Mo. 387; Jones v. Railroad, 125 Mo. 666; Cornell v. Railroad, 143 Mo.App. 598. (a) Deceased was not an employee. Clark v. Renninger, 89 Md. 66; Latta v. Lonsdale, 107 F. 585. (b) An employee may be a passenger and entitled to their rights. Hutchinson, Carriers (3 Ed.), sec. 1004; McNulty v. Railroad, 182 Pa. St. 479, 61 Am. St. 721; Haas v. Railroad, 111 Mo.App. 706; St. Clair v. Railroad, 122 Mo.App. 579; Williams v. Oregon Short Line, 18 Utah 210, 72 Am. St. 777; Whitney v. Railroad, 102 F. 850; Dewey v. Dwyer, 20 Colo. 132; Doyle v. Railroad, 166 Mass. 492; Eberts v. Railroad, 157 Mich. 260; Peterson v. Seattle Trac. Co., 23 Wash. 615; Harris v. Puget Sound, 52 Wash. 289. (2) The court did not err in excluding section 8014 of the statutes of Kansas making the common law effective in Kansas. It was immaterial and affords appellant no relief. Moore on Carriers, p. 594; Railroad v. Derby, 14 How. 468; Shoemaker v. Kingsdale, 29 U.S. 369; Railroad v. Walsh, 45 Kan. 653; Railroad v. Elder, 57 Kan. 317; Price v. Railroad, 220 Mo. 461. (3) The court did not err in excluding the petition filed by respondent in a suit in Kansas. It was not an admission. The evidence was overwhelming that deceased came to his death because of the injuries. Macdonald v. Railroad, 219 Mo. 480. (4) The court did not err in the giving of the instructions requested by respondent. (a) No. 1 on the measure of damages: Browning v. Railroad, 124 Mo. 71; Boetgger v. Iron Co., 124 Mo. 87; Lee v. Railroad, 195 Mo. 428; Railroad v. Townsend, 71 Kan. 529; Coal Co. v. Limb, 47 Kan. 469; Railroad v. Ryan, 62 Kan. 682; Cahill v. Railroad, 205 Mo. 407. (b) No. 2 on measure of duty: Price v. Railroad, 220 Mo. 444; Morris v. Railroad, 239 Mo. 715. (5) There was no error in the admission or rejection of testimony as to household expenses. Gas Co. v. Carter, 65 Kan. 565.
Suing in the Jackson Circuit Court on a cause of action originating in Kansas, and bottomed on a Kansas statute, plaintiff, as administratrix of Frederick Powell, deceased, sues for his death from injuries wrongfully received while a passenger on one of defendant's trains. She had a verdict for $ 7500, for the benefit of herself as widow and her minor child, Marjory, aged five. Defendant appeals from a judgment entered on such verdict.
Attend to such a summary of the pleadings as will intelligently outline the issues, to-wit:
The petition.
After alleging her residence in Washington county, Kansas; the death of her husband on the fourth day of October, 1909, intestate; her appointment as administratrix by the probate court of that county and her assumption of the burden of administration; that he left plaintiff as his widow and an only child, Marjory, of tender years (together with plaintiff his only heirs); that plaintiff lived for several years with said Frederick in lawful wedlock and that he continuously and suitably supported her and his child until he was injured by the negligent acts of defendant; that defendant was incorporated under the laws of Utah and owned and operated a railroad in Kansas -- we say, after the foregoing averments, the petition goes on to allege the existence and to set forth the terms of a statute in Kansas. (Note: This is the statute on which the action is based and it will appear further on in the opinion.)
Plaintiff further charges that decedent was a passenger upon one of defendant's regular passenger trains upon the 18th of December, 1907; that at a certain point in Kansas near a station, Lawrenceburg, on said date said train was wrecked through the negligence of defendant, its agents, servants, and employees; that the train, thereby thrown from the track, was turned upon its side; that said Frederick was violently thrown head foremost, striking the edge of a seat and the car window some ten feet from the place he had been seated and out of the car window, striking head-foremost in a ditch beside the track and under the car and therefrom receiving painful and permanent injuries from which, never recovering, he suffered great pain and died on said day in October, 1909; that if he had lived he might have maintained an action against defendant for injuries so received by him and so caused by said carelessness and negligence; that he was practicing his profession of an attorney-at-law in said Washington county; that he was able-bodied and industrious, forty-six years of age, earning between $ 2,000 and $ 3,000 a year, and that by reason of the premises plaintiff had been damaged in the sum of $ 10,000, for which she asks judgment.
The answer.
The trial answer, filed when the case was called for trial, was a second amended answer denying all allegations of the petition excepting that relating to defendant's incorporation. For a further defense, it averred that the first of January 1907, defendant and decedent entered into a contract of employment whereby Powell agreed to act as local attorney for defendant in Washington county, Kansas, for the year 1907; that as "part of the contract" defendant agreed to issue Powell an annual pass good in Kansas "and the said Powell agreed to accept said annual pass as part of the contract of employment;" that such pass was issued on January 1, 1907, was signed by said Powell and accepted as part of his contract of employment. One of the conditions printed on the back of the foregoing pass is here pleaded in haec verba in the answer. ...
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