Sparks v. Kansas City, S. & M. R. Co.

• Citation: 31 Mo.App. 111
• Parties: SARAH J. SPARKS, Respondent, v. KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY, Appellant.
• Decision Date: 08 May 1888
• Court: Missouri Court of Appeals

31 Mo.App. 111

SARAH J. SPARKS, Respondent, v. KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

Appeal fro the Oregon Circuit Court, HON. J. F. HALE, Judge.

Reversed.

WALLACE PRATT, OLDEN & GREEN, and C. B. MCAFEE, for the appellant Under the evidence in this case the court below should have taken the case from the jury by giving defendant's first instruction asked at the close of plaintiff's case and renewed again at close of evidence. Powell v Railroad, 76 Mo. 80; Yarnall v. Railroad, 75 Mo. 575; Bell v. Railroad, 72 Mo. 57; Railroad v. Ritchey, 102 Pa.St. 425; Railroad v Senpyer, 92 Pa.St. 276; Railroad v. Holmes, 5 Col. 197. When the plaintiff in making out his case clearly establishes that the injury he complains of was as much the result of his own negligence as that of the party of whose negligence he complains, he cannot recover. Milleum v. Railroad, 86 Mo. 189; Buesching v. Gas Co., 73 Mo. 229. There is no conflict in the evidence that this switch could be handled safely by the exercise of ordinary care. There is no evidence that this switch was dangerous or unfit for use, and defendant ought to have judgment here on this point. The court improperly admitted testimony tending to show that defendant may have made changes in this switch after the accident. There was no evidence that the switch was defective, unsafe, or dangerous, and permitting such evidence to go to the jury was in effect telling them that, " this act of defendant is an admission of that which plaintiff has failed to otherwise prove, viz., that something was wrong with the switch or defendant would not have made changes after the accident." Besides, the evidence was inadmissible for any purpose. Cramer v. City, 45 Iowa 627; Switland v. Tel. Co., 27 Iowa 434; Hudson v. Railroad, 8 A. & E. R. R. Cases, 464. The petition does not state facts sufficient to constitute a cause of action. The language of the statute is: " That if deceased be a minor and unmarried, then the father and mother, or the survivor may sue." Rev. Stat., secs. 2121, 2123. The right of action being created by statute, one who sues must bring himself within the statutory terms. McNamara v. Slavins, 76 Mo. 329; Baker v. Railroad, 91 Mo. 86. The petition fails to state that deceased was a minor and unmarried, nor is there anything averred from which it could be inferred that he was unmarried, and herein it fails to state a cause of action. Dulany v. Railroad, 21 Mo.App. 597.

MAXEY, VANWORMER & WINNINGHAM, for the respondent.

OPINION

ROMBAUER P. J.

This is a statutory action under the provisions of section 2122 of the Revised Statutes. The action is brought by the sole surviving parent to recover damages for injuries resulting in death, caused to her minor son, an employe of the defendant, by defect in the machinery for setting a switch. The answer consists of a general denial and the plea of contributory negligence.

Plantiff's right to bring the action is stated in the petition as follows: " Plaintiff states that she was the mother of Harry Barton, and that his father is dead, and was dead on the eighteenth day of November, 1885; that said Harry Barton was on said eighteenth day of November, 1885, a minor under the age of twenty-one years, and plaintiff's only child living."

The defect in the switch machinery is stated as follows: " That the spring lever of said switch was too stiff to be used with safety in a switch, and also that said spring lever was screwed up too tight; so that when plaintiff's minor son Harry Barton unlocked said switch as aforesaid and proceeded to open or set said switch by and with said spring lever, said spring lever by reason of the defectiveness aforesaid, caused the handle of said switch, as plaintiff's minor son Harry Barton took hold of and pressed against it to open or set it, to come or fly against him with great force, striking him on the side and belly, then and there, thereby causing immediate death; that it was the duty of said defendant to keep said switch in good condition, that is to say,--said defendant should have oiled the machinery of said switch, and loosened the screw or tap on said spring lever, so that said switch would have been in a safe working condition; all of which said defendant negligently failed to do.

That said switch machinery was unsafe, defective and unfit for use by reason of not being oiled and by reason of said spring lever being screwed up too tight, and that defendant knew of said defects as aforesaid, or by the...