Earnest v. St. Louis, M. & S. E. R. Co.

• Court: Supreme Court of Arkansas
• Writing for the Court: Hart
• Citation: 112 S.W. 141
• Parties: EARNEST v. ST. LOUIS, M. & S. E. R. CO.
• Decision Date: 29 June 1908

112 S.W. 141 EARNEST
v.
ST. LOUIS, M. & S. E. R. CO. Supreme Court of Arkansas. June 29, 1908.

Appeal from Circuit Court, Randolph County; John W. Meeks, Judge.

Death action by Mrs. David A. Earnest against the St. Louis. Memphis & Southeastern Railroad Company. Judgment for defendant on demurrer to complaint, and plaintiff appeals. Affirmed.

Whipple & Whipple, for appellant. W. F. Evans and W. J. Orr, for appellee.

Page 142

HART, J.

On the 31st day of October, 1902, David A. Earnest was a conductor on appellee's line of railway, which extends from Cape Girardeau, in Missouri, to Pocahontas, in Arkansas. On that day at the town of Delta, in Missouri, while engaged in his duties as freight conductor and while attempting to uncouple two cars of defendant's train, said David A. Earnest was caught between the cars and mashed. He died from the wounds received in a few days thereafter. Appellant alleges that the injury and death was caused by the negligence of the appellee; that she is the widow of said David A. Earnest, deceased; that said deceased had no minor children; that she has resided in the state of Arkansas since the death of her husband, and was never a resident of the state of Missouri. The action was commenced in the circuit court of Randolph county, Ark., on the 16th day of July, 1904. Appellee filed a general demurrer to the complaint. The demurrer was sustained, and judgment was rendered in favor of the defendant for costs. An appeal was granted to this court.

This suit it based on section 2864 of the Revised Statutes of Missouri of 1899 (Ann. St. 1906, p. 1637), which reads as follows: "Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant, or employé whilst running, conducting or managing any locomotive, car or train of cars, or of any master, pilot, engineer, agent or employé whilst running, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stage coach or other public conveyance whilst in charge of the same as a driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any steamboat, or the machinery thereof, or in any stage coach or other public conveyance, the corporation individual or individuals in whose employ any such officer, agent, servant, employé, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskillfulness, negligence or criminal intent above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased; Provided, that if adopted, such minor child or children shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of the adoption; or, third, if such deceased be a minor and unmarried, whether...