Eickhoff v. Sedalia, Warsaw & Southwestern Ry. Co.

• Decision Date: 16 May 1904
• Parties: ANNIE EICKHOFF, Respondent, v. THE SEDALIA, WARSAW & SOUTHWESTERN RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

80 S.W. 966

106 Mo.App. 541

ANNIE EICKHOFF, Respondent, v. THE SEDALIA, WARSAW & SOUTHWESTERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 16, 1904

Appeal from Pettis Circuit Court.--Hon. George F. Longan, Judge.

Reversed.

William S. Shirk for appellant.

(1) The court below erred in refusing to give defendant's ninth instruction asked. The evidence leaves little room to doubt but that the relation of master and servant did not exist between plaintiff and her son at the time the injury occurred. In fact the son's evidence shows clearly that such relation did not exist. And yet the court by refusing the defendant's ninth instruction, refused to submit this question to the jury. This was error. Schmitz v Railway, 46 Mo.App. 396; Mauerman v. Railway, 41 Mo.App. 348. The court erred in not sustaining defendant's demurrer to the plaintiff's case at the close of her evidence, and to the whole case at the close of all the evidence. The evidence as to gross contributory negligence was uncontradicted and undisputed and there is no evidence whatever that the engineer saw the plaintiff's son in a position of danger, in time to avoid striking him. In fact the evidence tends strongly to show to the contrary. For the fireman says that as the engine went through the bridge he saw some section hands along side of the track--they were all on the right-of-way, outside of the track, when he last noticed them. The evidence also shows beyond dispute that the engineer sounded the alarm whistle and there is not a particle of evidence to show that he did not do this, the moment he discovered Schumacher in danger. In the absence of such evidence the case should not have been permitted to go to the jury. Tanner v. Railway, 161 Mo. 497; Guyer v. Railway, 73 S.W. 584; Sharp v Railway, 161 Mo. 214; Harris v. Railway, 40 Mo.App. 255; Carrier v. Railway, 74 S.W. 1002. We might burden our brief with a long list of cases to the same effect, but the legal proposition is so plain and familiar, that it is wholly unnecessary. We respectfully submit that the judgment should be reversed.

James T. Montgomery and Charles E. Yeater for respondent.

Plaintiff's fifth instruction correctly defines the law and the plaintiff under the law was entitled to the services of her son until his majority. The case of Sharpe v. Biscuit Co., 75 S.W. 289, citing Hennessy v. Brewing Ass'n, 145 Mo. 104, settles this question beyond dispute.

OPINION

BROADDUS, J.

The plaintiff sues to recover for loss of services of her minor son, John Schumacher, who, it is alleged, was injured by the negligence of defendant while in its employ. There was a trial before a jury and verdict for the plaintiff.

Many interesting questions are raised by the respective counsel in the case. But as it is denied, and we think properly, that any cause of action existed in the plaintiff, it will not be necessary to notice them.

The said John Schumacher was the son of plaintiff by a former husband, deceased, and the plaintiff became the wife of one Joseph Eickhoff, some eight years before the injury complained of. Both plaintiff and her son testified that after said marriage said Eickhoff took the said son into his house and treated him as a member of his family. On this point the son testified as follows: "I couldn't tell you how long my mother has been married to my stepfather, eight or nine years, something like that. After my mother married Mr. Eickhoff I was taken right into Mr. Eickhoff's family; he had been married before and had children, and Mr. Eickhoff took my mother's youngest children into his family and took the place of a father to me." The mother's language was: "When I married Mr. Eickhoff I had six children . . . John Schumacher is twenty-one years old today. He was twelve when I married Mr. Eickhoff. Mr. Eickhoff had some children, too. He took my children into his family and treated them as his own. We mixed them all together and just treated them as one family."

It seems that afterwards the said minor was permitted to hire out for wages which he generally...