Atchison

• Decision Date: 08 May 1885
• Citation: 33 Kan. 543,6 P. 877
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. CONRAD WEBER, as Administrator of the estate of Philip Weber, deceased

6 P. 877

33 Kan. 543

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. CONRAD WEBER, as Administrator of the estate of Philip Weber, deceased

Supreme Court of Kansas

May 8, 1885

Error from Atchison District Court.

ACTION brought by Conrad Weber, as administrator of the estate of Philip Weber, deceased, under § 422 of the civil code to recover damages on account of the death of the plaintiff's intestate, alleged to have been causal by the negligence and wrongdoing of the Atchison, Topeka & Santa Fe Railroad Company.

On the 31st of October, 1881, the deceased was a passenger on the defendant's road from Hutchinson, bound eastward to Atchison, to which latter place Philip Weber had paid railroad fare and held a ticket. It is claimed by the plaintiff, that after leaving Hutchinson, and before the passenger train reached Newton, Philip Weber became ill, and was in a helpless and insensible condition; and that at eight o'clock in the evening, the employes of the defendant on the train "did thrust, force, push and drag him," the said Philip Weber, from their cars, and then carelessly and inhumanly left the said Philip Weber lying on the platform at Newton, aforesaid, in an exposed condition, and wholly unprotected from the cold and inclemency of the weather, and did then and there abandon him, and leave him wholly unprotected and uncared for for the space of two hours or more; and as a result of such treatment and negligence of the defendant, said Philip Weber died, on or about the first day of November, 1881.

The defendant denies any wrongdoing on its part, and alleges that when Philip Weber came upon the train at Hutchinson, Kansas he was afflicted with delirium tremens, and was so violent and disgraceful in his conduct toward the other passengers of said train, that said defendant, by its agents and employes was compelled to remove and did remove him from its cars, at the city of Newton, using no more force therefor than was absolutely necessary, and placed him in charge of the city authorities of the city of Newton for care and protection and that said Philip Weber was not left lying upon the platform at Newton in an exposed condition, for any longer time than was necessary to secure for him proper care and attention.

Trial was had at the June Term, 1883, of the district court, and the following special findings of fact were returned:

SPECIAL QUESTION OF FACT SUBMITTED BY PLAINTIFF.

"What were the necessary funeral expenses incurred in burying Philip Weber? A. One hundred and eighty-two dollars and fifty cents."

SPECIAL QUESTION OF FACT SUBMITTED BY DEFENDANT.

1. What was the age of Philip Weber at the time of his death? A Thirty-six years.

2. Did he leave wife or child, a father or mother? A. No.

3. Did he leave as his next of kin his brothers Conrad Weber, John Weber, Frederick Weber, Jacob Weber, and his sister Margaret Gerloch? State age of each. A. Yes; but ages not known.

4. Did Philip Weber contribute anything to the support of his next of kin; if so, to what ones, and when was it done, and in what did it consist? A. Mrs. Gerloch and family, Mrs. Conrad Weber and John Weber; date unknown; watch, clothing, and money, and holiday presents; inside of fifteen years.

5. Are each of said next of kin able to support themselves, and are they in comfortable circumstances? A. In part, and in medium circumstances.

6. Was said Philip Weber at the time of his death in poorer circumstances than any of his next of kin? A. Can't tell.

7. Had said Philip Weber been in the habit of using all of his earnings in defraying his personal expenses? A. No.

8. Did Philip Weber ever accumulate any property from his labor or in his business transactions? If so, state when he had such property, its value, and what it consisted of. A. Do not know.

9. Was not all the property belonging to Philip Weber inherited by him a short time before his death? A. Yes.

10. Was he not in very bad habits as to the drinking of intoxicating liquors for years before his death? A. Yes.

11. What personal or real property did Philip Weber leave, if any? What was the value of the same, and of what did it consist? A. Something over three hundred dollars. Three hundred dollars and over, money, and promissory note.

12. Did any of his next of kin depend on him for support? A. No.

13. Did Philip Weber take defendant's train as a passenger at Durango, Colorado, on October 28th or 29th, 1881, intending to go to Atchison, Kansas? A. Suppose he did.

14. Did he get off said train at Hutchinson, Kansas? A. Yes.

15. Why did he leave defendant's train at said station? A. Can't tell.

16. Was he sick and suffering from the result of drinking intoxicating liquors to excess? A. Think he was.

17. Was said Philip Weber placed in an east-bound train passenger car of the defendant's at. Hutchinson, Kansas, by the city officers of that place on the 31st day of October, 1881? A. Yes.

18. Had he been in Hutchinson since the day before, suffering from the effects of excessive drinking? A. Think he was.

19. Was he placed in said ear by any of the agents of servants of the defendant? A. No.

20. Was he capable at the time he was placed in said car of taking care of himself? A. With proper care.

21. Could said Philip Weber sit in the seats provided for passengers in said car? A. Yes.

22. Was he in a fit condition to travel on defendant's train without injuring him? A. Think not.

23. Did said Philip Weber immediately after being placed in a seat in said car, slip of fall therefrom into the aisle of passage-way thereof, and ride lying in such place a part of the way going to Newton? A. Yes.

24. What is the distance from Hutchinson to Newton? A. 33 miles.

25. What is the distance from Hutchinson to Atchison? A. 218 miles.

26. Did the agents or servants of the defendant know that said Philip Weber had been placed in said car, and the condition he was in, until after the train had started to leave Hutchinson? A. No.

27. Was it necessary to remove Philip Weber from defendant's train at Newton? A. Do not know.

28. Was he so removed by and under the direction of one of the police officers of the city of Newton? A. No.

29. Did the city marshal of the city of Newton ascertain that said Philip Weber was at defendant's station, and did said marshal take charge and control of him immediately after his removal from said car? A. After said Philip Weber had lain on the stone steps of the platform for over one hour, in an unconscious state, then the city marshal took charge of said Philip Weber.

30. Did the city marshal of Newton have charge of said Philip Weber from the time he was removed from said car until about 2 o'clock P. M. of November 1st, 1881, when he was removed to the Howard House? A. After the expiration of one hour or over.

31. Was Philip Weber kept in the city prison and engine house from about 8:30 P. M. of October 31st until he was removed to the Howard House? A. From 9 o'clock P. M. of October 31st, he was.

32. Were said places cold, and unsuited for the occupancy of a person in his condition? A. Yes.

33. Did not his confinement in said places have more to do with hastening his death than any other exposure he was subjected to? A. It might have had as much, but not more.

34. Was said Philip Weber conscious at the time he was placed on the defendant's train at Hutchinson? A. He was.

35. Was he in a fit mental condition to provide for his own safety on the train? A. At times he was.

36. Shortly after leaving Hutchinson, and while said train was in full motion, did he not try to jump off of said train, and was he not prevented from so doing by one of the defendant's employes? A. We doubt it.

37. Did he not endeavor to escape from the car in which he was placed, three times, intending to jump therefrom while said train was in full motion, and was it not necessary for the train hands to watch him to prevent his so doing? A. No.

38. Did the employes of the defendant watch and care for said Philip Weber while he was in said car, and prevent him from injuring himself by jumping off? A. No.

39. Was not Philip Weber, at the time he was removed from the train at Newton, in such a condition as to render it unsafe for him to continue his journey to Atchison, Kansas, without medical treatment, of anyone to care for him? A. We think it was.

40. Could not Philip Weber receive better care from the city authorities of the city of Newton than it was possible for the defendant's employes to give him on the train? A. Yes.

41. Was he out of his proper state of mind and delirious while in said car; did he remove his shoes, complain that they were full of bugs and worms, and conduct himself in such a way as to annoy and frighten other passengers in said car? A. Yes.

42. Did a number of passengers leave said car and go to other parts of the train because of his conduct? A. A few.

43. Was his habit of so drinking increasing? A. Don't know.

44. If said Philip Weber had lived, was it probable that h is habits would have improved? A. Do not know.

45. Was the sickness of Philip Weber, just before his death, caused by excessive drinking? A. Do not know.

46. Did he have the delirium tremens? A. Had delirious tremors.

47. Did he have a disease of that nature? A. Yes.

48. Was his life of any pecuniary value to his next of kin at the time of his death? A. No.

49. Were the habits of the deceased such, at the time of his death, that they would necessarily shorten his life, disable him from performing labor or transacting business, and make his expenses equal to his earnings? A. Yes.

50. Strictly as a pecuniary question--as a mere matter of money--what was the loss of the next of kin of said Philip Weber by his death? A. No loss....