Barker v. Hannibal & St. J. R. Co.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Ray
• Citation: 14 S.W. 280,91 Mo. 86
• Parties: BARKER v. HANNIBAL & ST. J. R. CO.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 01 October 1886

14 S.W. 280 91 Mo. 86 BARKER
v.
HANNIBAL & ST. J. R. CO.¹ Supreme Court of Missouri. October Term, 1886.

DEATH BY WRONGFUL ACT — ACTION BY WIFE.

In damages for injuries resulting in death, Rev. St. Mo. 1879, § 2121, provides that suit may be brought by the wife, or if "she fails to sue within six months after such death, then by the minor child or children of such deceased." Held, that the right of the wife to sue after the expiration of six months is conditional, and that the petition in such case must aver that there are no minor children.

Appeal from circuit court, Buchanan county; J. P. GRUBB, Judge.

G. W. Easley, for appellant. Spencer & Hall, for respondent.

RAY, J.

The petition on which this cause was tried is as follows: "Plaintiff states that upon the ___ day of ___ she was lawfully married to Edward B. Barker, deceased, late of Buchanan county, and at the times hereinafter mentioned she was the wife, and is now the widow, of said deceased, Edward B Barker. Plaintiff states that defendant now is, and at the times hereinafter mentioned was, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and that it then was, and still is, engaged in running its steam locomotives, its cars and trains of cars, for the transportation of persons and goods between the city of Atchison, in the state of Kansas, and the city of Hannibal, in the state of Missouri, and particularly through and between the city of St. Joseph, in Buchanan county, and the town of Easton, in said county and state of Missouri. Plaintiff states that the defendant, on the fifteenth day of April, 1879, by its servants, agents, and employes, carelessly, negligently, unskillfully,

14 S.W. 281

and recklessly ran one of its engines and trains of cars upon and over the said Edward B. Barker, and thereby struck and inflicted grievous bodily injury upon the said Edward B. Barker, by reason of which the said Edward B. Barker was then and there instantly killed. Plaintiff states that said Edward B. Barker was run over and killed, as aforesaid, within one year before the commencement of this suit, and at a point on defendant's railroad track between the said city of St. Joseph and the said town of Easton, about one mile south-east of the said city of St. Joseph. Plaintiff states that the deceased, Edward B. Barker, was run over and killed, as aforesaid, by the defendant, without any fault or negligence whatever on the part of the said deceased. Wherefore plaintiff prays judgment against defendant for the sum of five thousand dollars, according to the statute in such case made and provided, together with the costs of this action." The answer of the defendant was as follows: "Defendant for answer to plaintiff's petition denies each and every allegation therein, excepting only the allegation that defendant is a corporation. Defendant for further answer says that the injury sued for was not occasioned by any negligence or default of the defendant or its servants or agents, but by the carelessness and negligence of the deceased, Edward B. Barker." The reply of plaintiff was a general denial of the new matter contained in the answer. The trial resulted in a verdict in plaintiff's favor for the sum of $5,000. The defendant filed in due time its motion for a new trial and in arrest, assigning in the latter, among others, the ground that the petition did not state facts sufficient to constitute a cause of action. Both of said motions were overruled, judgment was entered upon the verdict, and the case appealed to this court.

The plaintiff and her deceased husband resided near defendant's track, about two or three miles from St. Joseph, and about 8 or 9 o'clock, in the morning of April 15, 1879, the plaintiff's husband, while walking along the track in the direction of St. Joseph, and about 100 yards from his residence, was run over and killed by one of defendant's passenger trains coming from the east, and going to St. Joseph. This action was begun in the circuit court of Buchanan county, April 9, 1880, or a year, lacking a few days, thereafter. The object of the action was to recover damages for the husband's death, occasioned, as alleged, through defendant's negligence in running said train. In the view we...