Williams v. St. Louis & S. F. Ry. Co.
| Citation | 27 S.W. 387 |
| Court | United States State Supreme Court of Missouri |
| Decision Date | 26 June 1894 |
| Parties | WILLIAMS v. ST. LOUIS & S. F. RY. CO. |
1. Comp. Laws Kan. 1879, § 3546, makes a right of action barred by any statute unavailable as a cause of action or ground of defense. Id. § 3539, limits the bringing of civil actions for injury to another's right, not arising out of a contract, to two years after injury accrued. Held, that even if the right of action, as well as the remedy, is extinguished by such statutes, defendant, in pleading them, must aver that both itself and plaintiff were residents of Kansas during the whole of said two years; and it is not enough that the injury occurred in Kansas, and that defendant had agents in that state who could have been served with process.
2. An action for bodily injuries caused by a train wreck being good wherever the common law prevails, the period of limitations is fixed by the law of the forum, not by that of the place of injury.
3. It is error, in a personal injury case, to allow plaintiff to state the number and age of all his children.
4. It was improper to ask plaintiff whether he knew, when his employer reimbursed him the amount of his doctor's bills, that defendant was expected to pay half.
5. In an action against a railroad company, counsel must not travel outside the record to refer to Jay Gould and "modern railroad economics."
6. The fact that citations of reports were penciled on the instructions sent to the jury room is not ground for a new trial, unless it appear that the jury had the books in the room, or knew what the cited cases decided.
Appeal from circuit court, Dade county; D. P. Stratton, Judge.
Action by D. B. Williams against the St. Louis & San Francisco Railway Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.
This action was commenced in Greene county, Mo., December 20, 1889, and change of venue awarded to Dade county. The suit is to recover damages for personal injuries received by the plaintiff in a wreck of defendant's train at High Lonesome Hill, near Severy, Kan., January 1, 1885. The amended petition on which the case was tried alleged that defendant was a railroad corporation, organized under the laws of Missouri, owning and operating a line extending from Wichita, Kan., to Springfield, Mo. That plaintiff was an express messenger, in the employ of the Adams Express Company; and that, at the time of the wreck, he was engaged on his usual route and in his usual work in the express car of said wrecked train. That there was a sharp curve and a down grade just east of Severy, and the road at that place was in a dangerous and unsafe condition. That defendant had negligently and carelessly allowed the ties there to become rotten, decayed, and unfit for use. That the rail spikes would not hold, and some of them were gone. That the ties were far apart. There was no ballast, and the track was out of alignment. That the rail joints were defective in construction, weak, and unsafe. That the outside of the curve was lower, instead of higher, as it should be. That defendant knew of these facts. That the wrecked train was late, and, instead of running at schedule time of 20 miles per hour, was negligently and carelessly running at 40 miles per hour. That the track and road would not support the train, but gave way. It ran over an embankment, and the express car in which plaintiff was riding was wrecked and demolished, and he, without fault or negligence, was thrown under the timbers; his left arm crushed, broken, and joint ruptured, and left hand cut, bruised, and mashed. That plaintiff became sick for a great length of time, and suffered great and intense mental anguish; and plaintiff paid out and expended the sum of $150 for nursing, medicines, and medical treatment, and surgeons, in attempting to be cured of his wounds and injuries. That, by reason of said injuries, he has lost the use of his left arm, and has lost all his earnings since January 1, 1885, and has been unable to earn any money since said time. That plaintiff has been made a cripple for life. That both plaintiff and defendant were on January 1, 1885 (the time of wreck), and have been ever since, residents of the state of Missouri. He prayed judgment for $20,000, and costs.
The answer to the amended petition was a general denial, and also pleaded, "for another and separate defense," that plaintiff's cause of action accrued in the county of Butler, state of Kansas, and accrued more than two years before the bringing of plaintiff's suit. That on the 1st day of January, 1885, there was in force in Kansas the following statute: "Civil actions for injury to the right of another, not arising out of a contract, can only be brought within two years after such injury shall have occurred, and not afterwards." That on the 1st day of January, 1885, the following statute was in force in said state of Kansas, namely: "When the right of any action is barred by the provision of any statute, it shall be unavailable either as a cause of action or ground of defense." That on the 1st day of January, 1885, the following statute was in force in the said state of Kansas, namely: "Every railroad company or corporation doing business in the state of Kansas, or having agents doing business therein for such corporation or company, is hereby required to designate some person residing in each county into which its railroad runs, or stage route may or does run, or in which its business is transacted, on whom all process and notice issued by any court of record or justice of the peace may be served." This defendant further states that it operated a railroad through the following named counties in said state of Kansas, namely: Cherokee, Crawford, Labette, Montgomery, Wilson, Elk, Greenwood, Butler, Cowley, Sedgwick, Sumner, Harvey, Reno, Rice, Elsworth, and Harper. That on the 1st day of January, 1885, the following statute was in force in the state of Kansas: "In every case such railroad company, corporation or stage company shall file a certificate of the appointment and designation of such person in office of clerk of the district court of the county in which such person resides, and service of all process upon the person so designated, in any civil action, shall be deemed and held to be as effectual as if service of such process were made upon the president or chief officer of the corporation or stage company." That all said above statutes have been in force at all times from said 1st day of January, 1885, to the present time, and are still in force in said state of Kansas. That on the 1st day of January, 1885, this defendant had filed in the office of the clerk of the district court of each of the counties hereinbefore named the appointment and designation of a person residing in each of said counties, respectively, on whom all process and notice issued by any court of record or justice of the peace of said county might be served; and that said appointment and designation have remained on file in the office of said clerks of said courts, respectively at all times from said 1st day of January, and have remained on file up to the present day. That the following statute was in force in said state of Kansas on January 1, 1885, namely: "If any railroad or stage company or corporation failed to designate or appoint such person, as in the preceding section is provided and required, such process may be served on any local superintendent of repairs, freight agent or agent to sell tickets, or stationkeepers of such company or corporation in such counties, or such process may be served by leaving copy thereof, certified by the officer to whom the same is directed to be a true copy, at any station of such company or corporation in such county with some person in charge thereof, or any employé of such company or corporation, and such service shall be held and deemed complete and effectual." Defendant states that said statute last named has been in force in said state at all times since said 1st day of January, 1885, and now is in force therein. This defendant further states that, in each of the counties above named, it has station houses, at each of which there is a station keeper, and a freight agent, and has in said several counties more than 60 offices, having persons in charge thereof on whom process might have been served at any time from said 1st day of January, 1885, to the present time, within the said state of Kansas, by force and effect of the last above recited statute. Defendant further states that on the 1st day of January, 1885, the following statute was in force in the state of Kansas, namely: "If when a cause of action accrues against a person he be out of the state, or has absconded or concealed himself, the period limited for the commencement shall not begin to run until he comes into the state, or while he was gone, absconded or concealed." The defendant states that the last-named statute has been in force at all times since the 1st day of January, 1885, in said state of Kansas, and is now in force therein; that by force of said several statutes authorizing service upon persons duly appointed and designated by this defendant in said state of Kansas hereinbefore set forth, and by force of said statute authorizing complete and effectual service upon said agents and employés of defendant in said state of Kansas hereinbefore set forth, defendant says that it was not out of said state of Kansas on the 1st day of January, 1885, nor has it at any time since that day been out of the said state of Kansas, within the meaning of said statute last above recited, although it is a corporation created by and existing under the laws of the state of Missouri. Wherefore, by reason of the lapse of time since said cause of action accrued before the bringing of this suit, to wit, by reason of the lapse of more than two...
To continue reading
Request your trial