18 P. 57 (Kan. 1888), Hamilton v. Hannibal & St. J. R. Co.

Citation:18 P. 57, 39 Kan. 56
Opinion Judge:JOHNSTON, J.:
Attorney:Thos P. Fenlon, and Tomlinson & Eaton, for plaintiff in error. Stringfellow, Strong & Mosman, for defendant in error.
Judge Panel:JOHNSTON, J. All the Justices concurring.
Case Date:April 07, 1888
Court:Supreme Court of Kansas

Page 57

18 P. 57 (Kan. 1888)

39 Kan. 56




Supreme Court of Kansas

April 7, 1888

Page 58

Error from Atchison District Court.

This action was brought by M. F. Hamilton, the widow of M. C. Hamilton, to recover from The Hannibal & St. Joseph Railroad Company $ 5,000 as damages for the death of her husband, alleged to have resulted from the negligence of the agents and employes of the railroad company. The petition set out in the record was filed July 10, 1886, and, omitting title and caption, is as follows:

"The said plaintiff, M. F. Hamilton, complains of the said defendant, The Hannibal & St Joseph Railroad Company, and alleges that at the time of the happening of the wrongs and grievances hereinafter set forth and at the present time, the defendant was and is a railroad corporation, organized under the laws of the state of Missouri, was and is doing business therein as a common carrier, and at said dates and times the said road of defendant passed into the county of Atchison, and was at said date and is doing business as a common carrier and railroad corporation therein; that on the 17th day of September, 1885, the plaintiff was the lawful wife of Milton Clarkson Hamilton, and had been for a long time prior thereto, and now is his widow; that at said date Milton Clarkson Hamilton was and had been for a long time prior thereto a stout, hearty, healthy man, and was then of the age of forty-six years; that at that date he was engaged as inspector of supplies, by the Chicago, Rock Island & Pacific Railroad Company, and in the reception of a large salary from said company for his services as such inspector, to wit: the sum of dollars per month; that on said 17th day of September, 1885, it became and was the duty of said Milton Clarkson Hamilton to inspect certain supplies for his employer; and on that day, for the purpose of attending to his said duties at the proper place, he became and was a passenger upon the cars of defendant, for hire, and the defendant then and there, in consideration of a certain reward, then and there to it paid, contracted and obligated itself to safely carry and transport said Milton Clarkson Hamilton to the place of his destination on its said railroad.

"Plaintiff further alleges, that whilst so as a passenger for hire on said train of cars of defendant, said defendant, by its negligence and carelessness and the negligence and carelessness of its agents and employes on said road, on said day, did permit two trains, one being the train and cars upon which said Milton Clarkson Hamilton was then being carried as aforesaid, to collide, both of said trains being upon the same track of the said defendant, in the county of Buchanan, in the state of Missouri, then and thereby, and without any fault or negligence upon the part of the said Hamilton, crushing, bruising and wounding him, the said Hamilton, in the legs, arms and body, from which he suffered terrible agony, and from which he died, at St. Joseph, Buchanan county, Missouri, on the 23d day of September, 1885.

"And plaintiff further alleges, that at the date of the happening of the injuries and death herein set forth, the laws of the state of Missouri permitted the widow of any person whose death might be caused by the wrongful act or omission of another, if such widow instituted her action within six months from the date of the death, to recover against such person causing such death, and limited the recovery in such action to five thousand dollars, which said law of the state of Missouri is contained in §§ 2121, 2122, and 2123, which read as follows, to wit:

"'SEC. 2121 Damages for Injuries Resulting in Death in Certain Cases, When and by Whom Recoverable-- Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant, or employe, whilst running, conducting or managing any locomotive, car, or train of cars; or of any master, pilot, engineer, agent, or employe, whilst running, conducting or managing any steamboat, or any of the machinery thereof; or of any driver of any stage coach or other public conveyance, whilst in charge of the same as a driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof; or in any locomotive or car, or in any steamboat or the machinery thereof, or in any stage coach or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employe, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach, or other public conveyance at the time any injury is received, resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay, for every person or passenger so dying, the sum of five thousand dollars, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant,...

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