Harding v. Missouri Pac. Ry. Co.

• Decision Date: 28 February 1913
• Citation: 248 Mo. 663,154 S.W. 711
• Parties: HARDING v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

154 S.W. 711

248 Mo. 663

HARDING v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

Motion for Rehearing Overruled March 15, 1913.

RAILWAY ACCIDENT — RAILWAY POSTAL CLERKS — ACTION FOR DEATH.

In an action against a railway company for death of a railway postal clerk who was killed in a collision between defendant's trains, plaintiff held entitled to recover.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Luta M. Harding against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 232 Mo. 444, 134 S. W. 641, Ann. Cas. 1912B, 1221.

This action is for damages on account of the death of William H. Harding, who was a railway postal clerk and was killed in a collision between two of defendant's trains, on one of which he was being carried, near Knobnoster, Mo., July 2, 1908. The petition alleges general negligence of the defendant in the operation of its railroad and trains. The answer of defendant admits its incorporation, its business as a common carrier of passengers, and that "plaintiff's alleged husband" was on defendant's train when a collision took place; avers that he was riding on a pass issued at the request of the United States government, by whom he had been placed upon said car for the purpose of distributing the mail instead of making distribution at stationary post offices of said government; that the only compensation received for the transportation of the United States' mails is paid by the government at so much per hundred pounds; that plaintiff's alleged husband was at the time of his injury in a standing posture, and was injured on that account; and averred that he had assumed all risk of injury that might occur to him by reason of the fact that he was so carried on said train; that plaintiff had received from the United States government $1,000 indemnity or insurance for her husband's death, which payment it alleged was a bar to this action; that the injury sued for was the result of the direct contributory negligence of the plaintiff's alleged husband. The answer concluded, to wit: "Defendant denies each and every allegation in said petition contained, not hereinbefore expressly admitted." The evidence disclosed that plaintiff's husband was killed in the manner stated in the petition; that he was at that time earning a salary of $1,200 a year; that he was the husband of the plaintiff; and that the injury occurred through the negligence of a station agent in failing to deliver or communicate a telegraphic dispatch warning the trains at what point they should pass. At the conclusion of the testimony, the court gave an instruction at plaintiff's request and over the objection of defendant, to wit: "The court instructs the jury that, under the pleadings and evidence in this case, you will return a verdict in favor of the plaintiff for not less than $2,000, nor more than $10,000, in the discretion of the jury." The jury returned a verdict for $5,500. The defendant duly perfected an appeal to this court.

R. T. Railey and J. F. Green, both of St. Louis, for appellant. Glendy B. Arnold, of St. Louis, and Frank T. Miller, of Peoria, Ill., for respondent.

BOND, J. (after stating the facts as above).

1. The only question presented for review is the correctness of the instruction set out in the foregoing statement. Appellant insists that there were two issues which arose on its answer resting on matters in pais, and touching which oral testimony was adduced; that these issues should have been submitted. This contention is made on the theory that its answer denied the allegations of the petition that plaintiff was the wife of the deceased and that the collision was negligently caused. But this motion overlooks the fact that the answer of defendant was neither in the form of a general nor specific denial, and hence the only issues tendered by it were the affirmative defenses therein set up. As to these, defendant adduced no evidence in support of any of them which were sufficient in law to preclude a recovery. The fact that plaintiff was an employé of the government, riding on a pass, did not render him any the less a passenger under the settled law of this state. Magoffin v. Railway, 102 Mo. 540, 15 S. W. 76, 22 Am. St. Rep. 798; Mellor v. Railroad, 105 Mo. 460, 16 S. W. 849, 10 L. R. A. 36; Jones v. Railway, 125 Mo. 676, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St. Rep. 514. Neither did the receipt by plaintiff of an indemnity on the death of her husband debar her from bringing this suit. As to the remaining special defenses (contributory negligence and assumption of risk), no evidence whatever was given on the trial, and no error is assigned in the brief in this court. This leaves the case to rest on the admitted and undenied allegation of the petition that plaintiff's husband was killed while occupying the legal status of a passenger, by the negligent operation of defendant's trains. This state of the matter, in the absence of countervailing evidence, entitled plaintiff to an instruction to find in her favor. Stephens v. Koken Barber Supply Co., 67 Mo. App. 587; Wolff v. Campbell, 110 Mo. 114, 19 S. W. 622. This result was caused by the omission of defendant to insert either a general or specific denial in its answer, as authorized by statute. If the answer had contained a separate defense of a general denial or a specific denial of the allegations of the petition, then the defendant would have been entitled to a submission to the jury of any issues thus...