Charlton v. St. Louis & S. F. R. Co.

• Decision Date: 21 November 1906
• Citation: 98 S.W. 529
• Court: Missouri Supreme Court
• Parties: CHARLTON et al. v. ST. LOUIS & S. F. R. CO.

98 S.W. 529

CHARLTON et al. v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

1. DEATH—ACTIONS UNDER LAWS OF OTHER STATES.

The statutes of Kansas, authorizing an action for death caused by injury inflicted there, may be enforced in Missouri.

2. SAME—PERSONS ENTITLED TO SUE—STATUTES.

Since the courts of Kansas have construed the words "next of kin" in Gen. St. Kan. 1897, c. 95, §§ 418, 419, authorizing an action for negligent death for the benefit of decedent's next of kin, to mean those who inherit from decedent under chapter 109, § 19, providing that, where an intestate leaves no issue nor wife, his estate shall go to his parents, a father and mother may sue for the death of their son, dying intestate, without wife or issue, in consequence of an injury received in Kansas.

3. SAME—GROUNDS OF ACTION.

Under Gen. St. Kan. 1897, c. 95, § 418, authorizing an action for the death of a person, caused by the wrongful act of another, when decedent, had he lived, could have maintained an action, the issue, in an action for death caused by the wrongful act of another, is whether decedent, had he survived, could have maintained an action for the injuries causing death.

4. MASTER AND SERVANT — ASSUMPTION OF RISK—NATURE—EXTENT.

An employé, on entering his master's employment, impliedly agrees with him to assume the risk of usual dangers incident to the work

which remain after the master has exercised ordinary care.

5. SAME—QUESTION FOR JURY.

In an action for the death of a brakeman in consequence of his body coming in contact with a water crane maintained by the railroad close to its track to supply engines with water, evidence examined, and held, that the question of decedent's assumption of risk was for the jury.

6. SAME — DEFECTIVE APPLIANCES — NEGLIGENCE.

It cannot be said as a matter of law that a water crane maintained to supply passenger engines with water at a station, placed so near the track as to be from 18½ to 23½ inches from the side of freight car operated on the track, is a safe distance from the track.

7. SAME—QUESTION FOR JURY.

In an action against a railroad company for the death of a brakeman on a freight train, in consequence of his body coming in contact with a water crane maintained close to the track, evidence examined, and held, that the question of the company's negligence in maintaining the crane too near the track was for the jury.

8. SAME—CONTRIBUTORY NEGLIGENCE.

It is not negligence for a freight brakeman to mount his train when in motion to resume his duties after he had left the train to procure a lunch.

9. SAME.

A brakeman on a freight train, injured by coming in contact with a water crane maintained near the track, while climbing the ladder of a box car in the train, cannot be charged with negligence on the theory that he mounted the train on the wrong side of the crane, for, having an eye to mount the car, there could be no wrong and right side to the crane.

10. TRIAL — DIRECTION OF VERDICT — CONSIDERATION OF EVIDENCE.

On a demurrer to the evidence at the close of plaintiff's case, plaintiff is entitled to every reasonable inference fairly deducible from the facts proved.

11. MASTER AND SERVANT — CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for the death of a brakeman in consequence of coming in contact with a water crane near the track while mounting the ladder of a box car in his train, evidence examined, and held, that the question of his contributory negligence was for the jury.

12. SAME—EVIDENCE—ADMISSIBILITY.

Where, in an action for the death of a brakeman in consequence of coming in contact with a water crane near the track while climbing the ladder of a box car, it appeared that the brakeman had left the train to obtain a lunch at a lunch counter, that on returning to the train he saw "hoboes" thereon, that he mounted a car, and was struck by the crane on the car passing it, the fact that a conversation was held between the brakeman and the proprietor of the lunch counter with respect to the fact that there were "hoboes" on the train was relevant, though the particulars of the conversation were inadmissible as hearsay.

13. EVIDENCE — SIMILAR FACTS — OTHER INJURIES FROM SAME CAUSE.

In an action for the death of a brakeman in consequence of coming in contact with a water crane near the track while climbing the ladder of a box car in his train, it was error to exclude the testimony of a witness, who had been a brakeman working on the road, and who was familiar with the crane, that he knew that the crane brushed his arm once in passing, as showing the nearness of the crane to the track, and, if the witness at the time assumed an unnecessary position, the same was a matter to be developed by cross-examination.

14. MASTER AND SERVANT—RULES OF EMPLOYMENT —PROOF.

A person who had been a brakeman on a railroad was competent to prove the duties of a brakeman, with reference to keeping trespassers off the cars, by proving what brakemen usually did.

15. EVIDENCE—CONCLUSION OF WITNESS—IRRESPONSIVE ANSWER.

Where, in an action for the death of a brakeman in consequence of coming in contact with a water crane near the track while climbing the ladder of a box car in his train, a witness, who had been a brakeman on the road, and was familiar with the crane, testified that he had observed the crane and was asked on cross-examination as to whether he had observed the crane at times, the answer, after stating that he had, that he had been afraid of the crane as it was too close to the track, was a conclusion of the witness, and improper.

16. SAME—SPECULATIVE TESTIMONY.

Where, in an action for the death of a brakeman in consequence of coming in contact with a water crane near the track while climbing the ladder of a box car, the proof showed that there was a crane at another station further from the track, proof that the duties of a brakeman would familiarize him more with the crane at the latter station than with the crane causing the injury was properly excluded as speculative.

17. MASTER AND SERVANT—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

In an action for the death of a brakeman in consequence of coming in contact with a water crane near the track while climbing the ladder of a box car in his train, the evidence showed that the crane was placed so near the track that the same was from 18½ to 23½ inches from the sides of freight cars, and that the railroad maintained at another station a crane further from the track. Held, that testimony that freight trains took water at the crane at the latter station was admissible on the issue of the brakeman's contributory negligence.

18. SAME.

The evidence was admissible as showing that there was no physical necessity for maintaining a crane so close to the track as the one causing the injury, and therefore showing that the same was negligently maintained.

19. WITNESSES — COMPETENCY — KNOWLEDGE OF FACTS.

In an action for the death of a brakeman in consequence of coming in contact with a water crane near the track while climbing the

ladder of a box car, a witness, who has made measurements of the width of the company's freight cars, is competent to testify as to their width, though he has no knowledge, by reason of his experience, of the average width of such cars.

Appeal from Circuit Court, Jackson County; Andrew F. Evans, Judge.

Action by William R. Charlton and another against the St. Louis & San Francisco Railroad Company. From a judgment of nonsuit, plaintiffs appeal. Reversed and remanded.

Flournoy & Flournoy, for appellants. L. F. Parker and Pratt, Dana & Black, for respondent.

LAMM, J.

James W. Charlton was a freight brakeman in defendant's employ. In June, 1902, while climbing the ladder of a box car in his train, his body came in contact with a standpipe or water crane maintained by defendant close to its track to supply its passenger engines with water at Paola, Kan. He was knocked from the car and mortally wounded, shortly thereafter dying in a hospital. His father and mother sue, by virtue of certain statutes of the state of Kansas, for $10,000 damages. At the close of plaintiff's case, the court gave an instruction on behalf of defendant in the nature of a demurrer to the evidence. Thereupon plaintiffs took a nonsuit with leave, and, having unsuccessfully moved the court to set the nonsuit aside, they bring the case here by appeal.

The statutes of Kansas pleaded (and proved at the trial) were as follows:

First, sections 418 and 419, of chapter 95 of the General Statutes of Kansas of 1897; the same being sections 4686 and 4687 of Dassler's Compilation of 1899 of the General Statutes of Kansas.

Section 418: "When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

Section 419: "In all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of the civil code of 1868 (the next preceding section) is, or has been, at the time of his death in any other state or territory, or when being a resident of this state, no personal representative is, or has been, appointed; the action provided in this section may be brought by the widow, or when there is no widow, by the next of kin of such deceased."

Second, section 19, c. 109, of said General Statutes of Kansas of 1897; the same being section 2459 of said Dassler's Compilation, and reading thus: "If the intestate leaves no issue, the whole of...