Erb v. Morasch
| Decision Date | 17 September 1898 |
| Citation | 54 P. 323,8 Kan.App. 61 |
| Parties | ERB v. MORASCH et al. |
| Court | Kansas Court of Appeals |
Syllabus by the Court.
1. In an action under section 422 of the Code, it is not required that the petition shall state how the plaintiffs were injured pecuniarily, to state a cause of action; nor is it necessary that it allege special damages to entitle the plaintiffs to a verdict.
2. Ordinance No. 522 of Kansas City, Kan., making it unlawful for any railway engine or train of railroad cars to run within the city limits at a speed exceeding six miles an hour, is not void because section 8 exempted from its provisions the Interstate Rapid-Transit Railway Company, it appearing that the excepted company is a street-car line, and not in fact a railroad within the same situation and conditions as ordinary railways to which the provisions of the ordinance were intended to apply.
3. The application of the requirements of the ordinance to the defendant’s trains under existing conditions was not an unreasonable restraint upon the defendant or upon commerce because the place where the killing occurred was within the suburbs of the city, and not upon a highway or street crossing.
4. The ordinance is not obnoxious to the provisions of the fourteenth amendment to the constitution of the United States. Railroad Co. v. Richmond, 96 U.S. 521.
5. The ordinance is not obnoxious to the constitutional provisions of the state in not having a uniform operation because of the exception attempted to be made by section 8 thereof.
6. The failure of the defendant to observe the provisions of the ordinance by running its train within the city at a speed of 15 miles an hour was negligence of which the deceased could have legally complained had she survived the injury although, at the time, she was upon the defendant’s unfenced track, not at any street crossing, and without license of the company thereto.
Error from district court, Wyandotte county; Henry L. Alden, Judge.
Action by Otto J. Morasch and Eliza Morasch, as next of kin or Irene Morasch, deceased, against Newman Erb, as receiver of the Kansas City, Wyandotte & Northwestern Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.
Waggener, Horton & Orr, for plaintiff in error.
McGrew, Watson & Watson, for defendants in error.
This is an action begun in the district court of Wyandotte county by the defendants in error against the plaintiff in error, under section 422 of the Code of Civil Procedure, to recover damages on account of the death of the infant daughter of the plaintiffs, whose death, the petition alleges, was occasioned by the operation of defendant’s passenger train, on the 16th day of June, 1893. The child was about 34 months old at the time it was killed. The petition alleges that the child was killed on the right of way of the railway, not at the crossing of any public highway or street, within the corporate limits of the city of Kansas City, Kan.; that the train was being run at a high, dangerous, and reckless rate of speed within the city limits, in violation of the ordinances of the city; that the servants of the defendant in charge of the train were likewise negligent in not stopping the train, or making any effort to slack its speed or get it under control, after they had observed the child upon the railway track. The defendant answers, first, by a general denial of all of the allegations of the petition, except such as are confessed. It admits the incorporation of the railway company, and that the defendant was the duly appointed, qualified, and acting receiver of the road, as alleged in the petition. It denies specifically that there was any ordinance in the city of Kansas City regarding the speed of trains. It denies that the train was run at an excessive rate of speed; alleges that, if the deceased was injured as alleged, it was not the result of any negligence on the part of the defendant, his agents or employés, but was the result of the negligence of the plaintiffs in their failure to use reasonable and ordinary care regarding the child. The plaintiffs replied by general denial to the allegations of the answer made by way of defense. The case was tried to a jury, and resulted in a verdict for $1,020 for the plaintiffs. The jury also returned, with their general verdict, answers to 36 special interrogatories submitted by the defendant, many of which the trial court ought to have refused to submit to the jury. The material findings of the jury are that the child was killed on the right of way of the railroad company; that part of the railway right of way where the child was killed is within the corporate limits of the city of Kansas City, Kan.; that the house in which the plaintiffs lived at the time the child was killed was 125 feet south of the railroad track, and that the plaintiffs had lived there about two months prior to the accident; that trains passed to and fro on this line frequently, and the plaintiffs knew this, and that it was dangerous for their children to be on or near the track; that they knew, further, that there was nothing to prevent this child from going onto the track if left unattended; that the parents were not negligent with regard to their care of and attention to the child; that the right of way of the railway company, at the time of the accident, was grown up with weeds to near the end of the ties, some two or three feet high; that the engineer and fireman were in their proper places, looking ahead in the direction said engine was moving, at the time of the accident; that the bell was being rung continuously; that the engineer and fireman did not, as soon as they discovered the child in a position of danger, do everything that might have been done to stop the train and prevent the death of the child; that, if the train had been observing the provisions of the ordinance as to speed within the city limits, the child would not have been killed; that the failure to observe the requirements of the ordinance resulted in the death of the child; that the engineer and fireman did not wantonly and willfully run the engine over the child after they discovered it. There was a motion by the defendant for judgment on the special findings, notwithstanding the general verdict, which was denied; a motion for a new trial on the statutory grounds, which was likewise denied; and the plaintiffs thereupon had judgment upon the verdict. We will consider the errors assigned in the order in which they appear in the brief of the plaintiff in error.
First. That the verdict and findings of fact are not sustained by sufficient evidence. There is no doubt in our mind but that the evidence fully warranted the verdict and findings of the jury.
The second assignment is of a general character, and is of errors of law occurring at the trial, and duly excepted to at the time. Under this assignment, counsel contend, first, that the petition was defective; that there was no sufficient allegation of pecuniary or special damage to the plaintiffs, as next of kin. It is sufficient to say that as to special damages there was none claimed or allowed, but only such general damages as are contemplated by the provisions of the statute giving the right of action. It is not necessary for the petition to contain allegations of the particular loss to plaintiffs occasioned by the death of the infant, nor the evidence by which they expected to sustain the allegation of damage. The general allegation was sufficient. While the question of pleading was not specifically in controversy or passed upon in the case of Railway Co. v. Cutter, 19 Kan. 83, yet this deduction logically follows the decision in that case. See, also, Railroad Co. v. Barron, 5 Wall. 90. There was no motion to require the plaintiffs to make it more definite and certain, but the objection was a general one to the introduction of the evidence under the petition, and the only question to be decided is, did the petition state a cause of action?
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