Hendryx v. Kansas City

• Decision Date: 07 February 1891
• Court: Kansas Supreme Court
• Parties: HARRIET A. HENDRYX, as Administratrix of the Estate of Willie Hendryx, deceased, v. THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY

25 P. 893

45 Kan. 377

HARRIET A. HENDRYX, as Administratrix of the Estate of Willie Hendryx, deceased, v. THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY

Supreme Court of Kansas

February 7, 1891

Error from Bourbon District Court.

THE case is stated in the opinion.

Judgment affirmed.

Ware Biddle & Cory, for plaintiff in error.

Wallace Pratt, and Chas. W. Blair, for defendant in error.

STRANG C. All the Justices concurring.

OPINION

STRANG C.:

This is an action brought by the plaintiff to recover damages for injuries received by the plaintiff's intestate, through the alleged negligence of the defendant, in operating its train of cars, from the effects of which he died. The defendant was, on the 27th day of August, 1886, running its train of freight cars south, over its line, from Pleasanton to Fort Scott. At Pleasanton, the deceased, Willie Hendryx, went into a box-car of said train, to steal a ride to Fort Scott. There was one other person in the car with him, called in the evidence in this case a "tramp." At Hammond station, six miles north of Fort Scott, the hind brakeman of the train closed the doors of the car, while the boy and his companion were still in the car. From Hammond the train ran to the M. K. & T. junction near Fort Scott, where it stopped a short time, and then pulled up a short distance, and stopped again. After pulling up, Willie Hendryx was found on the track in the rear of the train, seriously injured. He was taken home to Pleasanton, where, notwithstanding he was carefully nursed and properly attended by physicians, he died on the 12th of September, 1886. The evidence in the case consisted wholly in an agreed statement, and the depositions of two witnesses, who also got onto said cars at Pleasanton and rode to Fort Scott. There was no conflict in the evidence. Not a single question of fact was contested in the whole case. The defendant demurred to the evidence of the plaintiff, and the court sustained the demurrer, and entered judgment for the defendant. Motion for new trial was heard and overruled.

There is but one question in the case, and that grows out of the theory of the plaintiff, as to the cause of the death of the plaintiff's intestate. The plaintiff claims that when the brakeman shut the doors of the car at Hammond, the deceased became alarmed, and in his fright attempted to climb out of the window in the end of the car to the ground, and in so doing fell, and was run over and injured. Plaintiff says the shutting of the doors of the car by the brakeman, with deceased and his companion in the car, was such an act as rendered the defendant guilty of negligence in connection with the injury of said Willie Hendryx, and liable in damages therefor. The undisputed evidence shows the deceased was a trespasser on the defendant's train. The only duty, then, that the company owed him was not to wantonly injure him. (Toomey v. S. P. Rld. Co., 24 P. 1070; Mason v. Mo. Pac. Rly. Co., 27 Kan. 83; Railroad Co. v. Rollins, 5 id. 167; Pierce on Railroads, 330; Palmer v. Rld. Co., 14 N.E. 70; A. T. & S. F. Rld. Co. v. Lindley, 42 Kan. 714; S. K. Rly. Co. v. Sanford, just decided; A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608; Railroad Co. v. Pointer, 14 id. 37; Taylor v. Clendening, 4 id. 524; 15 N.Y. 456; 47 Iowa 82; 48 Ind. 90.)

The only act on the part of the railroad company that is complained of, was the closing of the doors of the car in which deceased and companion were at the time, by the brakeman of the train. What evidence is found in such act on the part of the brakeman of any malice toward the deceased or of any wanton or reckless disregard of his rights? In what manner did the closing of such doors place the deceased in danger? The car was empty. He did not freeze nor smother therein. He could not have been afraid of his companion, because he...