Burlington & Missouri Railroad Co. v. Crockett

• Decision Date: 07 July 1885
• Parties: BURLINGTON & MISSOURI RAILROAD COMPANY IN NEBRASKA, PLAINTIFF IN ERROR, v. MARTHA CROCKETT, ADMINISTRATRIX, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 219

17 Neb. 570

BURLINGTON & MISSOURI RAILROAD COMPANY IN NEBRASKA, PLAINTIFF IN ERROR, v. MARTHA CROCKETT, ADMINISTRATRIX, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 7, 1885

ERROR to the district court for Lancaster county. Tried below before POUND, J.

Reversed and remanded, with directions.

Marquett Deweese & Hall, for plaintiff in error.

A. J Sawyer, for defendant in error.

OPINION

MAXWELL, J.

In September, 1883, the defendant in error brought an action against the plaintiff in error to recover damages sustained by the death of one Clayborn Crockett. The petition, when filed, contained two counts, but on the motion of the defendant below the plaintiff was required to elect upon which count she would rely, and thereupon she selected the second. The second count alleges that on the 7th of March, 1882, the plaintiff below "was duly appointed administratrix of the estate of Clayborn Crockett, deceased, by the probate court within and for the county of Atchison and state of Kansas, and that in pursuance of said appointment she did thereafter, on said 7th day of March, A. D. 1882, qualify as said administratrix." After setting out that the defendant is the owner of and operating a railroad from Lincoln to and through Milford, in Seward county, that the deceased was twenty-four years of age in 1881, it is alleged, "That on the 18th day of November, 1881, said defendant, by its wrongful, careless, and negligent acts of its servants, agents, and employes, caused the death of said Crockett. That said wrongfulness, carelessness, and negligence consisted in this, to-wit, that on said 18th day of November, A. D. 1881, and for some time prior thereto, said Clayborn Crockett was engaged in the employment of said defendant, as foreman of a number of men then in the employment of said defendant, and at work upon a gravel train of said defendant; that it was the duty of said Clayborn Crockett to see that said employes of said defendant tendered themselves promptly for duty at the beginning of each day, and at the beginning of work of each afternoon of each day; that on said 18th day of November, 1881, said Clayborn Crockett was ordered and directed by one John Wyatt, foreman and conductor of said construction and gravel train (and superior to said Clayborn Crockett), to assist the shovelers in filling the cars then being used by defendant with gravel and earth, from a pit located near Milford, in Seward county." It is also alleged that, prior to that time and on that day, it was the custom of said defendant and its agent to keep a person to watch said gravel bank, and, in case of danger, to give warning to those working in the pit, to protect them from danger; but that when Crockett was required to assist in loading the cars, the watcher was taken off, and in consequence thereof, while said Crockett was engaged in loading the cars, a large quantity of gravel and earth fell from the bank upon Crockett, and so injured him that he died soon afterwards. The defendant in its answer says, "that the plaintiff ought not to recover, and has no legal right or authority to bring and maintain this action." The defendant also says, "that the said Clayborn C. Crockett, deceased, by his own carelessness and negligence, directly contributed to the injury complained of, and that said accident, injury, and death occurred without any fault or negligence on the part of the defendant." On the trial of the cause the defendant objected "to the introduction of any testimony in this case, for the reason that the plaintiff has not set forth a cause of action entitling her to recover. * * * There is no kin alleged--no relationship of kin, in any way, to the party deceased. * * * And, as appears by the petition, the plaintiff has no legal capacity to sue and maintain the action." The plaintiff's attorney then asked leave "to amend the petition by inserting that he (Clayborn Crockett) was the son of the plaintiff, and that it was without fault or carelessness on his part that the accident happened." COURT: "You can allege there that it was without fault, but no amendment as to his being her son."

The practice of objecting on the trial of a cause, after a jury has been impaneled and witnesses called to testify in the case, and a large amount of costs incurred, to the insufficiency of the petition is not to be encouraged, and if delayed until that time the court should, if necessary, and the defect can be cured by amendment, permit an amendment to be made instanter, and, unless for cause the case is continued, require the trial to proceed. A defect which would be fatal to recovery, however, may be taken advantage of at any time. Thus, in the "act authorizing the recovery of damages by the personal representative of a person whose death is caused by the wrongful act of a person,...