Atchison

• Decision Date: 06 July 1895
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. MARGARET HUGHES

40 P. 919

55 Kan. 491

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. MARGARET HUGHES

Supreme Court of Kansas

July 6, 1895

Error from Osage District Court.

THIS action was brought in the district court of Osage county by Margaret Hughes against The Atchison, Topeka & Santa Fe Railroad Company, to recover damages for the death of her husband, John Hughes. The petition alleges, among other things --

"That on or about 1 o'clock of the morning of March 20, 1890 the said John Hughes, in company with his relatives and friends, being at the station of Scranton, on the line of the defendant's railroad, and being desirous of going to the station of Peterton, also on the line of defendant's railroad, purchased and paid for, from the ticket agent of defendant at Scranton, a ticket authorizing and empowering him to ride and journey upon a passenger train of the defendants, then about to arrive at Scranton, on its journey to Peterton and points beyond; that in a short time thereafter said train arrived, and the said John Hughes went on board said train and took passage for said station of Peterton; that said train proceeded on its journey toward Peterton; that the conductor of said train and in charge thereof took up the ticket of the said John Hughes and was advised of the fact that said John Hughes and those with him were to get off at Peterton; that, as the train approached the. station of Peterton, the conductor informed and gave said John Hughes and his friends who were with him to be informed that the train would not stop at Peterton, but would slack up speed so that they might leave the train at the station in safety, and that they must do so; that the train slackened its speed, and in obedience to the commands request, invitation and solicitation of the said conductor all the persons in company with the said John Hughes left the train at a place which the said conductor gave all of them to be informed and understand was the station of Peterton; that the said station of Peterton was unlighted; that the train had run past the station and platform, and was then notwithstanding the speed had been slackened, running at a dangerous rate of speed to leave the train; that the said John Hughes, having but little experience in railroad traveling, and relying upon the said commands, request invitation and solicitation of the said conductor, with all the others of his party, left the train, being deceived by the said conductor as to the place where they should alight, and by the darkness of the place, and as to the speed of the train; that the said John Hughes was the last to alight; that the conductor knew that they all intended to alight, and while alighting from the train, then knew that it was dangerous to life and limb, and which the said John Hughes did not know, nor did he have reasonable means to know; that the whole party were hurried off the train by the conductor; that one of the party was severely injured, and the said John Hughes then received fatal injuries from which he died in a few moments afterward; that the said John Hughes was in the exercise of care at the time; and that his death was caused and produced by the negligence and carelessness of said conductor in not stopping said train at the platform and station of Peterton, and his criminal and willful negligence in compelling, commanding, requiring, inviting and soliciting the said John Hughes to leave the train in the night time at an unlighted station ground, at a speed known to be dangerous to him, and represented to be safe to said John Hughes to leave the train, and in the further negligence and carelessness of the defendant in not requiring the train to stop, in not by rule and order compelling its conductors not to put off passengers while the trains were in motion, and in keeping an unlighted station at Peterton; and for all which negligence and carelessness the defendant is by law responsible and liable; that, at the time of his death, said Hughes was 40 years of age, the head of said family, supported wholly by his labor, and that by reason of his death his said next of kin and heirs at law have suffered and sustained pecuniary damage and loss by his death to the extent of $ 10,000; and that this action is brought to recover the same for their exclusive benefit and use, as well as the sum of $ 5,000 for vindictive damages and smart-money by reason of the gross acts of negligence of defendant heretofore recited, and for costs."

The answer of the defendant was a general denial, and an averment of contributory negligence. In the second defense, it is alleged that the injuries sustained by Hughes were wholly the result of his attempt to leave the train while the same was in motion and while he was under the influence of intoxicating liquor, and in a condition produced by the use of intoxicating liquor such as to render him unable to alight safely from a train in motion. No reply was filed.

The case was tried at the April term, 1890, and, upon the testimony, the jury found that John Hughes came to his death by reason of the negligence of the conductor and brakeman in failing to stop the train at the station of Peterton and see him safely off. It was found that they required him to get off near the depot while the train was in motion and running at a dangerous rate of speed. It was further found that he was 40 years of age, that his occupation was a coalminer, that he was capable of earning $ 42 per month, and that he might be reasonably expected to earn such wages for a period of 25 year. The general verdict was in favor of the plaintiff below, and the damages awarded were $ 7,830. The Railroad Company brings the case here for review.

Judgment affirmed.

A. A. Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error.

Henry B. Hughbanks, and Frank A. Hay, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The first contention of the railroad company is that, upon the pleadings, judgment should have been given in its favor. The basis of this claim is that contributory negligence was set up as a defense in the answer of the railroad company, and that as there was no reply or denial of the averment of contributory negligence it must be taken as true. The petition alleged that the deceased was in the exercise of care when he attempted to alight from the train upon the order of the conductor, and the answer of the company contained a general denial of all the averments of the petition. If any reply was necessary to close the issue it appears to have been overlooked and waived by the parties and to have been regarded as unnecessary by the court. The parties evidently proceeded upon the theory that an issue had been fairly raised as to whether Hughes was in the exercise of due care when the fatality occurred. A great part of the testimony produced at the instance of the parties bore upon that question, and no objection was made by the railroad company that the pleadings were insufficient, nor that the absence of a reply entitled it to a judgment. At the commencement of the trial an objection was made to the admission of any testimony, but the ground of the objection was that the petition failed to state sufficient facts to constitute a cause of action; and at the end of the testimony offered to sustain the allegations of the petition, a demurrer to the evidence was interposed, which was overruled. Neither of these objections called the attention of the court to the necessity or omission of a reply. In view of the conduct of the parties in the course of the trial, the objection that there was no reply comes too late, and cannot be heard for the first time in the supreme court.

The next contention of the railroad company is that the conduct of the deceased in attempting to alight. from the train on a dark night when it was in motion was reckless negligence although he may have been invited or commanded by the conductor to do so, and therefore the court erred in refusing the request of the defendant to instruct the jury to return a verdict in its favor. On the night of March 19, 1890, John Hughes, his boy, who was about 11 years old, James O'Melia, his father-in-law, who was about 68 years old, and Alex. O'Melia, his brother-in-law, about 26 years of age, boarded a regular passenger-train of the railroad company at Scranton for the purpose of riding to Peterton, a station about 12 miles away. ...