Giannoula Diariotti v. Missouri Pacific v. Company

• Decision Date: 17 November 1914
• Citation: Giannoula Diariotti v. Missouri Pacific v. Company, 170 S.W. 865, 262 Mo. 1 (Mo. 1914)
• Parties: GIANNOULA DIARIOTTI v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

170 S.W. 865

262 Mo. 1

GIANNOULA DIARIOTTI v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

November 17, 1914

Appeal from Jackson Circuit Court. -- Hon. H. L. McCune, Judge.

Affirmed and remanded.

Martin L. Clardy and Edw. J. White for appellant; Elijah Robinson of counsel.

(1) The court erred in setting aside the verdict and judgment in this case in favor of the defendant and granting the plaintiff a new trial. The statute of Kansas, not vesting the cause of action absolutely in the widow, but the right to sue passing to the administrator or personal representatives of the deceased, the widow could not maintain the action, as the probate court, alone, would have jurisdiction to determine her property right and its jurisdiction in this regard was both original and exclusive. (2) The plaintiff's own evidence established that the accident through which Diariotti was injured, was not caused by any negligence of the defendant, or any of its employees, but that the deceased himself was guilty of negligence, directly contributing to his injury. The plaintiff put in evidence the statements of Bill Curissi and Pietro Darass and Bill Danasa. These statements showed that the deceased was "standing on hand car, when he become overbalanced and fell in front of the car. . . . Injured man says, got out of balance. No one to blame." And some of the witnesses for the plaintiff testified that the fourth car ran against the third car and knocked several men off, the deceased being one of them, but their testimony was conflicting and unsatisfactory and was diametrically opposed to the statements introduced by the plaintiff and standing alone was insufficient to support a verdict for the plaintiff. Moore v. Railroad, 28 Mo 622; Peck v. Railroad, 31 Mo.App. 123; Peffer v Railroad, 98 Mo.App. 291; Railroad Co. v Shertle, 92 Pa. 450. Both Peter Darass and Bill Corizis, in their statements, state that the deceased was told three or four times to hold on to the lever, which would have prevented his falling, but he failed to do so. This was a part of plaintiff's evidence and was uncontradicted. These statements convicted the deceased of contributory negligence, as a matter of law, and since he could not have recovered for the injury resulting therefrom, the plaintiff was also not entitled to recover and the demurrer was properly sustained. Van Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Huggard v. Railroad, 134 Mo. 497; Kelsey v. Railroad, 129 Mo. 362. (3) If the death of the deceased could be connected at all with the defendant's negligence, it was the negligence of its "agents" and "employees" and under the statute of Kansas, in force at the time of his injury and death, it was a condition precedent to the plaintiff's right to maintain this action; that "notice in writing of the injury, stating the time and place thereof," should have been given the railroad company," within ninety days after the occurrence of the accident and the failure to give this notice was a complete barrier to the plaintiff's right to maintain this cause of action. Mathieson v. Railroad, 219 Mo. 542.

Conkling, Rea & Sparrow for respondent.

BROWN, C. Lamm, C. J., Brown, Bond, Walker and Faris, JJ., concur; Woodson, J., dissents in an opinion filed; Graves, J., dubitante.

OPINION

BROWN

In Banc

BROWN C. -- The plaintiff is the widow of Peter K. Diariotti who was killed while engaged in the service of the defendant near Hope station in the State of Kansas, July 6, 1904. She commenced this suit in the circuit court for Jackson county, Missouri, at Kansas City, September 19, 1905, to recover damages sustained by reason of his death.

In her amended petition the plaintiff alleged that her husband was one of a number of laborers in defendant's employ working upon its track near the place where he was killed, and at the time of the accident was being carried by defendant on hand cars with other workmen to his place of work. That his death was the direct result of the negligence of the defendant and its foreman and assistant foreman in charge of the hand cars in placing upon the one upon which her husband was being carried, too many men; in failing to maintain a reasonably safe distance between them; in running the cars at an unreasonable rate of speed; in failing to stop the car immediately following in time to avoid a collision; and in failing to provide proper and sufficient rules for the operation of its hand cars under such circumstances, all of which were alleged in violation of its duty.

The plaintiff also pleaded as a foundation for her right to recover damages the following statutes from the General Statutes of Kansas of 1901:

"Section 4871. When the death of one is caused by the wrongful act or omission of another, the personal representatives 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 cannot 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 4872. That 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 chapter 80, Laws of 1868, 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 said section 422 may be brought by the widow, or where there is no widow, by the next of kin of such deceased."

The petition stated that plaintiff resided in Missouri at the time of his death, and that no personal representative had been appointed.

The defendant pleaded and put in evidence section 1 of chapter 393 of the Laws of Kansas of 1903, entitled "An act to define the liability of railroad companies in certain cases" which is as follows:

"Section 1. That section 1, chapter 93 of the Laws of 1874, entitled, 'An act to define the liability of railroad companies in certain cases,' approved February 26, 1874, be and the same is hereby amended so as to read as follows: Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage; provided, that notice in writing of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident."

The evidence tended to show that the deceased was a Greek who came to this country in March, 1903, from his home in the little village of Lasteika in the province of Elis in that country, leaving his wife and four young children, the eldest eleven years old, in their former home, sending them money from his earnings for their support and declaring his intention to return to his home in four years.

Upon his arrival in this country he landed in New York City, went to Chicago, where he remained fifteen or twenty days; thence to St. Louis where he remained a month, working in a factory, and from there he went to Sycamore, Kansas, where he entered the service of the defendant railroad company, by which he was moved from place to place in the course of his employment, and at the time of his death he was working on defendant's railroad near Hope, Kansas, where he lived in a boarding car. The accident happened while defendant was taking the gang with which he was employed to their place of work near Hope. There were between thirty and forty in the gang who were being moved on four hand cars in charge of a foreman and his assistant. The deceased was riding on the third car, standing on the front end with his back to the front, pumping the car in the usual manner. The evidence tended to show that the fourth car hit the third one upon which the deceased was riding, knocking him off it, and the car then ran against him, breaking three of his dorsal vertebrae. He was sent to the defendant's hospital in St. Louis, where he died from the injury in about three weeks.

Under a rule of defendant three reports were made out for its information by employees present at the accident. These reports were produced on the trial. The court directed a verdict for the defendant, stating at the time that it was upon the ground that no notice had been given by or on behalf of the deceased within ninety days after the occurrence of the accident as provided by section 1, chapter 393 of the Laws of Kansas 1903, already quoted. The motion for a new trial stated among others the following grounds:

"4. Because the court erred in holding that the provisions of the Act of the State of Kansas of March 4, 1903 (Laws of Kansas 1903, p. 599), were applicable to this case.

"5. Because the court erred in holding that the written notices of the injury, as made by defendant's laborers, were not a substantial compliance with the said act of the State of Kansas."

From the order of the court sustaining this motion, the defendant has taken this appeal.

I. This suit is founded upon section 422 of the Civil Code of Kansas which provides that "when the death of one is caused by the wrongful act or omission of another, the personal representatives 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...