Chicago, Burlington & Quincy Railroad Company v. Oyster
| Decision Date | 23 February 1899 |
| Docket Number | 8642 |
| Citation | 78 N.W. 359,58 Neb. 1 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. MARGARET E. OYSTER, ADMINISTRATRIX |
| Court | Nebraska Supreme Court |
ERROR from the district court of Phelps county. Tried below before BEALL, J. Affirmed.
AFFIRMED.
J. W Deweese, W. S. Morlan, and F. E. Bishop, for plaintiff in error.
Abbott Selleck & Lane and S. A. Dravo, contra.
Action by Margaret E. Oyster, administratrix of the estate of Granville R. Oyster, deceased, against the Chicago, Burlington & Quincy Railroad Company to recover damages for negligently causing the death of decedent. Plaintiff obtained a verdict in the sum of $ 5,000, and the defendant has instituted this proceeding for the purpose of securing a reversal of the judgment entered thereon.
A brief reference to the issues presented by the pleadings in the cause will aid in an understanding of the questions urged upon our attention. The petition avers the appointment and qualification of the plaintiff as administratrix of the estate of Granville R. Oyster, deceased; the incorporation of the defendant and the operation by it of a line of road extending from the Missouri river through the city of Holdrege to the east line of the state of Colorado; the employment of decedent by the defendant as a locomotive engineer on and for some time prior to July 29, 1894; that on said date, in the proper and careful discharge of the duties of his said employment, and under the directions of defendant and its officers and agents, the said Oyster was running the engine used to pull the regular night passenger train from McCook to Hastings, and when said engine arrived at the city of Holdrege it ran into an open switch, left the rails of the track, overturned, violently throwing said Oyster down under the engine, breaking his leg, bruising and scalding his flesh, and from which injuries he died the second day thereafter; that said accident was occasioned through no fault, failure of duty, or negligence of decedent, but by reason of the defendant having negligently, carelessly, and wrongfully left open said switch without proper, usual, and customary display of signal lights or other means of warning so as to advise him of the open switch and the condition of the road-bed, and that Oyster left surviving him six minor children, whose names and ages are stated in the petition, who were wholly dependent upon him for support, and by reason of his death are left helpless and destitute. The defendant filed a motion to require the plaintiff to make her petition more definite and certain by alleging therein whether the intestate left surviving him any widow. This motion was denied by the court, whereupon a general demurrer to the petition was interposed and overruled. An answer was filed which admits the incorporation of the defendant, and the employment of plaintiff's intestate; denies the appointing of Margaret E. Oyster as administratrix, and avers "that the accident, whereby the death of Granville R. Oyster was caused, was the result of his own carelessness, negligence, and disobedience of the rules and regulations of the defendant governing his conduct as a locomotive engineer, and that said accident was caused without any fault or negligence on the part of the defendant." It is further pleaded in the answer that the person deceased left at the time of his death surviving him his wife, the said plaintiff Margaret E. Oyster; that said action is not brought for the benefit of the widow, and hence there is a defect of parties plaintiff and the action should abate and be dismissed. The answer closes with a general denial of each averment contained in the petition, except those previously admitted. The reply admitted that Margaret E. Oyster was the decedent's widow, and then denied all the other allegations in the answer.
The petition contains no averment as to whether or not Oyster left surviving him any widow, and it is argued from this that no cause of action is stated against the defendant, and that the motion to make the petition more definite and certain in that particular should have been sustained. The action was under chapter 21, Compiled Statutes, called "Lord Campbell's Act." Section 2 of said chapter declares: "That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars." This section has more than once been considered by this court, and the uniform holding has been that an action for the wrongful death of a person cannot be maintained where it is not disclosed that the decedent left surviving him some one belonging to the class for whose benefit the statute was enacted, and who has sustained pecuniary loss by the death of the deceased person. (Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, 52 N.W. 840; Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N.W. 941; Orgall v. Burlington & M. R. R. Co., 46 Neb. 4; City of Friend v. Burleigh, 53 Neb. 674, 74 N.W. 50; Omaha & R. V. R. Co. v. Crow, 54 Neb. 747.) The damages recovered by a personal representative of a deceased person for the wrongful death of the intestate are assets for the proper distribution to "the widow and next of kin," and are not subject to the payment of the debts of the decedent. A petition therefore under Lord Campbell's act is defective which fails to disclose that the person deceased left a widow or next of kin depending upon him for support. (Burlington & M. R. R. Co. v. Crockett, 17 Neb. 570, 24 N.W. 219.) Manifestly it was not the intention of the legislature to give an action under said act only where both a widow and next of kin survive the person deceased. The action is well planted if there exists either a widow or next of kin on whom the law confers the right to be supported by the person killed. It is evident this is the meaning of the section quoted, and the petition in this cause disclosing that Granville R. Oyster left him surviving six minor children, who were depending upon him for maintenance, the action was instituted for the benefit of persons within the class named in the statute. The demurrer was properly overruled.
The statute authorizes the action to be brought for the benefit of the widow and next of kin, and the petition should disclose all beneficiaries,--that is, whether the decedent left a widow or next of kin, or both; but it is very evident that the defendant was not prejudiced by the denial of its motion to require the plaintiff to aver in the petition whether a widow survived the intestate, for the reason the defendant subsequently pleaded in its answer that Margaret E. Oyster, who sued as administratrix, was the widow of the decedent, and the reply admitted such averment to be true. So all the beneficiaries were named in the pleadings, and the existence of a widow was not a controverted point in the case. Certainly the fact that one of the beneficiaries was not mentioned in the petition could militate only against the plaintiff, and that in the assessment of the amount of damages. There is no defect of parties plaintiff. Margaret E. Oyster was the sole administratrix of the estate, and the action was properly brought by her in her representative capacity for the benefit of those in whose behalf it was prosecuted. She was the personal representative of the intestate, and alone could maintain the action. The widow or next of kin were not necessary parties thereto, but the damages recovered inured to their exclusive benefit.
The verdict is assailed as being against the evidence. Counsel for the administratrix insist that this question is not properly presented for review by the petition in error. The tenth assignment therein is as follows: "The verdict of the jury is not sustained by sufficient evidence, and is not in accord with the evidence and instructions given." It is conceded that this would be a sufficient assignment in a motion for a new trial, but it is argued that it is too indefinite and uncertain for a pleading in this court. The rule is that alleged errors must be specifically pointed out in the petition in error, and that mere general assignments are unavailing. But the rule has never been carried to the extent now pressed by counsel. We have never required that the petition in error should specify the particular branch of the case, or the question of fact raised by the record, it is claimed the evidence was insufficient to sustain. We regard the objection now raised as entirely too technical and devoid of merit. The assignment is sufficiently definite to require the consideration of the evidence certified up in the bill of exceptions to ascertain whether the verdict is contrary thereto.
There is but little, if any, conflict in the evidence. It is disclosed that Granville R. Oyster, plaintiff's intestate, was an experienced and careful engineer, and had been in the employ of the defendant for several years preceding the accident, in charge of an engine drawing a regular passenger train between McCook and Hastings. On the night of July 29, 1894, he started on his regular run from McCook, reaching Holdrege on the regular schedule time, about 12:40 A. M. West of this last named station is a switch...
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