ON the
31st day of May, 1887, Joel Cochran, administrator of the
estate of John M. Gibson, deceased, filed his petition in the
district court of Johnson county, against the Atchison
Topeka & Santa Fe Railroad Company, alleging that--
"The
plaintiff herein complains of the defendant herein, for that
on the 30th day of May, 1887, he was duly appointed and
qualified, and letters of administration of the estate of
John M. Gibson, deceased, were issued to him by the probate
court of Johnson county, state of Kansas, as the
administrator of said estate. And plaintiff further states
that the defendant herein is now, and was at the date
hereinafter first mentioned, a railroad corporation duly
organized under and by virtue of the laws of the state of
Kansas, and then owned and operated, and now owns and
operates, a railroad known as the Atchison, Topeka &
Santa Fe Railroad Company, and as such corporation and
railroad company was then and is now operating and
exclusively managing and controlling the Southern Kansas
Railway Company, a corporation duly organized under the laws
of the state of Kansas; that the Atchison, Topeka & Santa
Fe Railroad Company was then and still is a common carrier of
passengers for hire upon its trains into and through Douglas
and Johnson counties, Kansas, and that the Southern Kansas
Railway Company, so operated, managed and controlled by the
Atchison, Topeka & Santa Fe Railroad Company, was then
and still is a common carrier of passengers for hire upon its
trains of cars into and through Johnson county, Kansas, and
then ran its trains of cars over and used defendant's
tracks from Kansas City, Missouri, to Holliday, Kansas; and
that the town or village of Holliday was then a regular
station and depot, in Johnson County, Kansas, of the said
Atchison, Topeka & Santa Fe Railroad Company, on the main
line of its said railroad; and that said town or village of
Holliday, and the city of Olathe, in Johnson county, Kansas
were then regular stations or depots on the line of the
Southern Kansas Railway. Plaintiff further states, on the
21st day of March, 1887, the plaintiff's intestate, John
M. Gibson, had ridden as a passenger on a regular passenger
train of cars of the defendant company from Lawrence and
Eudora, Kansas, to Holliday station, and that upon that day,
at Holliday aforesaid, John M. Gibson, now deceased,
purchased from the defendant company's ticket agent at
Holliday depot aforesaid a ticket entitling him to be
transported on that day as a passenger thence to Olathe,
Kansas, by and upon a regular passenger train of cars of (and
then used by the defendant in the name) the Southern Kansas
Railway Company; and that in order for John M. Gibson, now
deceased, to get upon the regular passenger train of cars so
then being operated, managed and controlled by the defendant
company to be carried from Holliday to Olathe aforesaid, it
became and was necessary for John M. Gibson, now deceased, to
walk across the interjacent railroad tracks belonging to the
defendant company, and then being used by said company and
said Southern Kansas Railway Company with their locomotive
engines and passenger and freight trains of cars (there being
no other way for the decedent to get to and upon said train);
and that while the decedent was in the act of walking across
the interjacent railroad tracks aforesaid, at the station and
upon the invitation of the defendant company, and for the
sole purpose of boarding the regular passenger train of cars
of the Southern Kansas Railway Company as aforesaid to be
carried thence to Olathe aforesaid upon said train of cars,
which was then at rest about two or three tracks remote from
the platform of the defendant's depot or ticket office,
which said Southern Kansas train of cars did not then come to
nor did it intend to then come to the platform of the depot,
and which train was then about ready to start for Olathe
aforesaid, and there then being no regular crossing across
the interjacent tracks and no person there to warn him of
danger, the defendant company then and there, to wit, on the
21st day of March, 1887, at Holliday aforesaid, carelessly,
grossly, negligently, wantonly, and recklessly, by and
through its servants and employes then in charge of and
operating and running one of its freight trains of cars with
a locomotive engine attached thereto and in motion, on one of
said interjacent tracks of the defendant company, permitted
the locomotive so attached to said freight train of cars last
aforesaid (without any warning of any character to the
decedent of danger) to run against, strike, come in contact
with, and knock down and drag in a violent and forcible
manner the said John M. Gibson, now deceased, without any
fault, negligence or want of care on the part of the
decedent, and that by reason of said locomotive engine so
striking him and so knocking him down and dragging him, the
decedent was greatly bruised, cut and mangled in and about
his head, back, legs, arms and body, internally, and his
right leg was broken; and in consequence thereof the decedent
became sick, sore, and lame, and in consequence of the
injuries so received as aforesaid he was confined to his bed,
and suffered much mental and bodily pain and agony, from the
said 21st day of March, 1887, until on or about the 30th day
of March, 1887, when he died, intestate, at Olathe, Kansas;
and that the injuries all and singular so received by him as
aforesaid were the cause of the death of John M. Gibson,
without any fault, negligence, or want of care on the part of
said decedent contributing thereto. Plaintiff further states,
that John M. Gibson, now deceased, left Mary A. Cochran (nee
Gibson) and Elizabeth J. Adams (nee Gibson) his only children
him surviving, and are his only next of kin him surviving;
and that by reason of the premises, all and singular, the
said Mary E. Cochran and Elizabeth J. Adams, sole surviving
children and sole next of kin aforesaid, have been greatly
damaged by the death of John M. Gibson, now deceased, in and
to the amount of $ 10,000, no part of which hath been paid.
Plaintiff therefore as such administrator demands judgment
against the defendant company herein for the sum of $ 10,000
so as aforesaid sustained, with costs of suit and equitable
relief."
"1.
In this case the plaintiff charges the defendant company as
being the owner, or operator, controller and manager of the
Southern Kansas Railway Company at the time his intestate
Gibson, received his alleged injuries, and therefore I charge
you that the question of liability and responsibility of the
defendant company is one of fact to be determined by you from
all the testimony in the case.
"2.
In determining the liability of the defendant company, the
true test is, what company had the control, direction and
management of said Southern Kansas Railway and of the men
then operating the engines and passenger trains on said road,
and especially the engine and passenger train on which the
plaintiff's intestate was endeavoring to take passage, if
any; and in determining these questions it is your duty to
take into consideration all the facts and circumstances
proven by the evidence.
"3.
The fact that the officials of one railroad company are
officials of another railroad company, standing alone, would
not make the one responsible for the negligence or default of
the other; neither would the mere fact of the one railroad
owning stock or bonds of another railroad company make the
former company responsible for the acts of the latter; but if
you find from the evidence that the Southern Kansas Railway
Company, for all practical purposes, was, at the time
alleged, managed, controlled and operated by the defendant
company, being used as an auxiliary and a part of the
defendant company's system of railroads, then and in that
event the defendant company would ordinarily be responsible
for the negligence, default or miscarriage of the Southern
Kansas Railway Company, its agents and employes.
"4.
If in fact the defendant company exercised and assumed the
actual control of the management and operation of said
Southern Kansas Railway at the time of the alleged injuries,
it would be liable for the negligence, if any, of the men in
operating and managing the engines and passenger trains of
the Southern Kansas Railway Company, in failing to bring its
passenger trains to the platform of the depot to receive
passengers, (if they did so fail,) even though the men were
at the time engaged in the business of another company,
namely, the Southern Kansas Railway Company.
"5.
If the jury find that the general management of both roads is
under the control of the same officials; that the boards of
directors of both roads are substantially the same persons
that a majority of the said stock of said Southern Kansas
Railway Company is owned by the Kansas City, Topeka &
Western Railroad Company, which latter company is leased and
and operated by said defendant company for its use and
benefit, and that the balance of the stock of the said
Southern Kansas Railway Company is owned by the defendant
company; that both the defendant and the Southern Kansas
companies use and occupy the same line of track from Kansas
City, Mo., to Holliday, Kansas; that the same person is agent
and ticket-seller for both companies at said station,
Holliday; that the treasurer of said Southern Kansas Railway...
