Kennayde v. Pacific R.R. Co.

• Decision Date: 31 January 1870
• Parties: MARY KENNAYDE, Defendant in Error, v. PACIFIC RAILROAD COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

45 Mo. 255

MARY KENNAYDE, Defendant in Error,

v.PACIFIC RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Ewing, and Smith, for plaintiff in error.

I. If an action is based upon a statute, public or private, there must be reference thereto in the petition. (Gen. Stat. 1865, p. 661, § 41; 1 Chit. Plead., 372; 2 Chit. Plead. 504-512; Walther v. Warner, 26 Mo. 147; Bayard v. Smith, 17 Wend. 88; Utica v. Richardson, 6 Hill, 300; People v. Barton, 6 Cow. 290; Morris v. People, 3 Denio, 81; Chipman v. Emeric, 5 Cal. 239; 10 Mass. 39; 11 Mass. 273; 7 Mass. 9; 1 Wis. 282.)

II. The omissions that are made in the petition are fatal after verdict. (1 Chit. Plead. 373; 2 East, 333; 1 Maule & Sel. 500; Hann. & St. Jo. R.R. Co. v. Mahoney, 42 Mo. 467.)

III. The testimony disclosed that the deceased's own negligence contributed to his death, and hence there could be no recovery. (Redf. on Railways, 337, § 3; id. 332 §, 7; Brand v. Troy & Sch. Rail., 8 Barb. 368; Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Liddy v. St. Louis R.R. Co., 40 Mo. 506.)

H. B. Johnson, for defendant in error.

I. The omission of defendant's employees to ring the bell, as required by the statute, or sound the whistle as the rules of the company required, was gross negligence. (Beisiegel v. N. Y. Central R.R. Co., 34 N. Y. 622; Ernst v. Hudson River R.R. Co., 35 N. Y. 9; Renick v. N. Y. Central R.R. Co., 36 N. Y. 132; Philadelphia & Trenton R.R. Co. v. Hagan et al., 47 Penn. St. 244; Triplett v. Chicago, Burlington & Quincy R.R. Co., 38 Ill. 482; Brown v. N. Y. Central R.R. Co., 32 N. Y. 597; McGrath v. Hudson River R.R. Co., 32 Barb. 147; Newson v. N. Y. Central R.R. Co., 29 N. Y. 383; Ernst v. Hudson River R.R. Co., 39 N. Y. 61; O'Mara v. Hudson River R.R. Co., 38 N. Y. 445; Toledo, Peoria & Warsaw R.R. Co. v. Foster, 43 Ill. 415.)

II. When the negligence of defendant is clearly shown, and an accident has actually occurred, it is reasonable, prima facie, to refer it to the conduct of defendant's servants without requiring further proof. (Johnson v. Hudson River R.R. Co., 20 N. Y. 65; Milwaukee & Chicago R.R. Co. v. Hunter, 11 Wis. 160; Philadelphia & Trenton R.R. Co. v. Hagan, 47 Penn. St. 244; Augusta & Savannah R.R. Co. v. McElmurry, 24 Geo. 79; 2 Redfield on Railways, 200; Penn. R.R. Co. v. McTighe, 46 Penn. St. 316.)

III. Had deceased been slightly negligent, such negligence contributing only remotely to his destruction, and the gross negligence of defendant's employees being the immediate cause of it, plaintiff would still be entitled to recover. (Meyer v. Pacific R.R., 40 Mo. 156; Liddy v. St. Louis R.R. Co., 40 Mo. 506;Huelsenkamp v. Citizens Railway Co., 37 Mo. 537; Kennedy v. North Mo. R.R., 36 Mo. 351; Meyer v. People's Railway Co., 43 Mo. 523; Morrissey v. Wiggins Ferry Co., 43 Mo. 380.) The instructions given upon the part of the plaintiff were unobjectionable, and have been sanctioned by the courts of this State. (Schultz v. Pacific R.R. 36 Mo. 14-32; Gen. Stat. 1865, chap. 63, § 38.) The third instruction is proper. The law makes it the duty of the employees of a railroad to ring the bell. Negligence, even when gross, is but an omission of duty. It was important for the jury to know the duties of the parties, in order to judge of their negligence. (The Tonewanda R.R. Co. v. Munger, 5 Denio, 267; The N. Y. & New Haven R.R. Co., 1 Duer, 583; Cayzer v. Taylor, 10 Gray, 274.)

IV. The statute (Wagn. Stat. 310, § 38) is in the alternative, and it is the duty of the railroad to have and ring the bell as above stated, or to have a steam whistle. The instruction on this point misdirects the jury in this particular, and is cause of reversal. (30 Mo. 201; 38 Mo. 213.)

WAGNER, Judge, delivered the opinion of the court.

This was an action instituted by the plaintiff, the widow of Michael Kennayde, deceased, to recover damages for the killing of her husband, which was alleged to have been caused by the negligence, unskillfulness, and criminal intent of the officers, agents, servants, and employees of the defendant, whilst conducting, managing and running its locomotive and train of cars. The answer was simply a general denial. Trial by jury and verdict for plaintiff for five thousand dollars, the statutory penalty.

The facts are brief, and in substance these: That the employees of the defendant, between seven and eight o'clock of a very dark night in December, 1867, were backing a portion of a train near the depot, in the city of Kansas, where the railroad track runs along in the street, and at or very near where another street crosses the same. There were no lights in the rear of the train, no soundings of the whistle, as the rules of the company required, nor was the bell rung as the statute prescribes. There was no flagman at the crossing, nor any person to give notice of the approach of the cars. There were two tracks close together, and the train was backing on the switch, and struck some loose cars standing on the switch and drove them suddenly over Kennayde and killed him. Kennayde had been employed at work up in the city and his residence was on the other side of the track, and when last seen before the happening of the accident he was entirely sober.

Whether the facts constituted such negligence as to render the company responsible, was a matter exclusively for the jury to determine, and if the court did not mislead them by giving erroneous instructions the judgment must be affirmed.

But before proceeding to notice the instructions, we will examine a question which has been raised as to the sufficiency of the petition. It is contended that the petition is defective as a common-law pleading, and that it is not good under the statute. It is not necessary to notice the first objection, as it is admitted that at common law the action would not lie. It is beyond doubt that the pleader intended to found the action on the second section of the statute in reference to damages. He uses the exact words employed in the statute, giving a cause of action, sues in the name of the wife, and asks for the penalty given, in case of death, by that section.

The practice act declares that it shall not be necessary, in any pleading, to set forth any statute, public or private, or any special matter thereof; but it shall be sufficient for the party to allege therein that the act was done by the authority of such statute, or contrary to the provisions thereof, naming the subject-matter of such statute, or referring thereto, in some general terms, with convenient certainty. (2 Wagn. Stat., 1020, § 41.)

Although this petition does not charge that the act was committed contrary to the form of the statute, yet it does set out the facts which constituted it a statutory cause of action, and appears to have been framed expressly upon the statute. It is only necessary for the party seeking to avail himself of it to state facts which bring his case within the provisions of the statute, though according to the rules of good pleading he ought to refer to it. All the circumstances essential to support the action must be alleged, or in substance appear on the face of the declaration. (1 Saund. 135, n 3; 5 East, 244; Saund. Pl. and Ev., 830; 17 Wend. 88.)

In this case the facts and circumstances appear on the face of the petition. But if the matter was defectively stated in the petition the defendant should have made the point in the court below, and the objection now being raised for the first time can not be allowed.

At the instance of the plaintiff the court gave the jury three instructions. The first declared that if they believed from the evidence that Michael Kennayde was the husband of the plaintiff and that his death was occasioned by the negligence of any agent, officer, servant, or employee of defendant, whilst running, conducting and managing any locomotive, car, or train of cars, in Jackson county, then the jury should find for the plaintiff, and return a verdict for the sum of $5,000, providing the suit was brought within six months from the time of his death.

The second instruction stated that the jury should determine from all the evidence, whether any agent, officer, servant, or employee of defendant, whilst running, conducting and managing any locomotive, car, or train of cars, failed to exercise the diligence, care and foresight of a prudent man, and the absence or want of such diligence, care and foresight would constitute such negligence as would render the defendant liable.

The third and last instruction, and the one most complained of, is as follows: “It is the duty of all railroads to have a bell on each locomotive engine, and to ring them at a distance of at least eighty rods from the place where the railroad shall cross any traveled or public road or street, and be kept ringing until it shall have crossed such road or street.”

For the defendant the court gave two instructions. The first told the jury that unless they believed from the evidence that Michael Kennayde was killed by reason of the negligence or unskillfulness of the defendant, its agents, officers, servants, or employees, they should find for the defendant.

The second directed the jury, that if from the circumstances developed by the evidence they should find that the death of Michael Kennayde was occasioned in any manner by his own negligence, or that ...