Jones v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 09 December 1903
• Citation: 178 Mo. 528,77 S.W. 890
• Court: Missouri Supreme Court
• Parties: JONES et al. v. KANSAS CITY, FT. S. & M. R. CO.

77 S.W. 890

178 Mo. 528

JONES et al. v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri.

December 9, 1903.

MASTER AND SERVANT—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE — ASSUMPTION OF RISK—INSTRUCTIONS—ACTION FOR DEATH— ACTION BY WIDOW — STATUTES — PARTIES — MISJOINDER—DEMURRER—MOTION FOR NEW TRIAL.

1. The joinder of an improper or unnecessary party plaintiff, which renders the petition insufficient to support a judgment, can neither be waived nor cured, but can be brought up on motion in arrest or during the trial.

2. The improper or unnecessary joinder of a party plaintiff, the defect not being fatal to recovery, is to be deemed waived if not demurred to, or if defendant pleads to the merits after the overruling of a demurrer, and the insertion in the answer, or in a motion for a new trial, of an objection to the joinder, does not remove the waiver.

3. Gen. St. Kan. 1889, par. 4518, provides that the personal representative of one killed by wrongful act may sue therefor, and that the damages must inure to the benefit of the widow and children. Paragraph 4519, § 422a, provides that where the residence of a party killed by wrongful act is in another state the action may be brought by the widow or next of kin; Mo. Rev. St. 1899, § 547, provides that when a cause of action has accrued by the laws of any other state the action may be brought in Missouri by the person or persons entitled to the proceeds; and section 541, Practice Act (Rev. St. 1899, p. 238), provides that the trustee of an expressed trust may sue in his own name without joining the beneficiary. Held, that the widow of a resident of Missouri killed by wrongful act in Kansas might sue alone in Missouri, without joining the child of herself and deceased.

4. In a suit by a widow for the wrongful death of her husband in Kansas, the joinder of the child of herself and deceased was an unnecessary step, not constituting such a defect as could be taken advantage of after a plea to the merits.

5. Where a statute gives the widow of one killed by wrongful act a right of action for the death, for the benefit of herself and children, and the widow sues, the petition naming the plaintiffs as the widow, for herself, and as next friend of her child, the child is not, by a strict construction of the petition, made a party plaintiff to the suit, inasmuch as a suit by an infant must run in the name of the infant.

6. A locomotive engineer does not assume the risk of cars which, having escaped from a siding, are unattended on the main track, where they are liable to be run into by a regular train.

7. Where a locomotive engineer is killed by his train running into unattended cars on the main track, they having escaped from a siding, the burden is on the railroad to show freedom from negligence.

8. Where a railroad engineer is killed owing to his train running into unattended cars on the main track, they having escaped from a siding because of their having been negligently secured, such negligence is not that of fellow servants, it being the duty of the master to use reasonable care to prevent such an escape.

9. Where railroad cars on a siding escaped to the main track, in an action for the death of an engineer, caused by his train colliding with the cars, it was to be presumed that there was something defective with the brakes or their setting.

10. Where railroad cars standing on a siding, with brakes properly set, are driven upon the main track by a storm of such extraordinary violence that it could not reasonably have been anticipated, the railroad is not liable for injuries to an employé occasioned by the cars being on the main track.

11. In an action for the death of a railroad engineer owing to cars on a siding having escaped to the main track, the court instructed that, if the jury believed that the cars would not have escaped except for an unusually violent storm, defendant was not liable. Held, that the instruction presented the defense of a storm, severe beyond anticipation, as favorably to defendant as it could have asked.

12. In an action against a railroad for the death of a servant occasioned by cars escaping to the main track from a siding, evidence considered and held sufficient to justify the jury in finding that the brakes had not been properly set.

13. In an action against a railroad for the death of a servant, owing to cars escaping to the main track from a siding, the fact that there was no derailing switch did not show negligence per se.

14. Evidence as to the existence and use of derailing switches was proper.

15. In an action against a railroad for the death of a locomotive engineer owing to his train colliding with cars that had escaped to the main track from a siding, the fact that he had continued in defendant's service knowing that there was no derailing switch at the siding in question did not show contributory negligence as a matter of law.

16. The question whether the siding without a derailing switch was a reasonably safe appliance was one for the jury.

17. The court instructed that if the jury believed that defendant negligently failed and omitted to fasten and secure the cars, whereby they escaped, etc., plaintiff was entitled to recover. Defendant claimed that the words "fasten and secure" rendered the instruction erroneous, as imposing the duty of making the car incapable of getting loose. The evidence relative to fastening cars referred to brakes and blocks, and the instruction complained of was followed by one defining the word "negligence," and the jury were instructed that defendant was only bound to use reasonable care, using ordinary appliances, and that they should take all the instruction together. Held, that the instruction was not erroneous, since, even standing alone, it was not susceptible of the meaning claimed, and especially not so in view of the other instructions.

18. The cars not having been blocked, and there having been no derailing switch, and plaintiffs' evidence having tended to show that it was not unusual for cars to be blocked on a side track, and that derailing switches were in common use, and defendant's evidence tending to show that blocks were not ordinarily used when the brakes were well set and the cars on a level track, and that derailing switches were not ordinarily used on such a track, and that they were of doubtful utility, an instruction that the jury might consider the appliance and means in common use was not erroneous on the ground that there was no evidence of appliances in general use and not in use at the place in question.

19. In an action against a railroad for the death of a locomotive engineer owing to his train having collided with cars that had escaped from a siding, there was evidence that the accident resulted from an unusual storm, and the jury was instructed that if such were the case plaintiff could not recover, and that, if the death were caused by an ordinary peril incident to the business, plaintiff could not recover. The court instructed that, in determining whether defendant used reasonable care to confine the cars, the jury might take into consideration the appliances and means, if any, which were adopted and in common and general use at the time for that purpose, at similar places, by prudently and properly conducted railroads. Held, that the instruction was not erroneous as omitting any reference to assumed risk.

20. In an action for wrongful death under Gen. St. Kan. 1889, par. 4518, giving the widow and children the right to damages, the court instructed that in assessing damages, if the jury found for plaintiff, they should assess the damages with reference to the pecuniary loss sustained by the wife and child, by fixing the same at such sum as would equal the probable earnings of the deceased, taking into consideration his age, business capacity, experience, habits, health, and energy, during what would probably have been his lifetime, and by adding the same to the value of his services in the attention to and care of his family and the education of his child, in all not to exceed the sum of $10,000. Held that, while it was subject to the interpretation that it gave as the measure of damages all wages deceased would probably have earned, without taking into consideration natural contingencies, and without considering that part of his earnings, at least, would not necessarily or naturally have been given to his wife and children, it was not reversible error in view of the verdict for $5,000, and Rev. St. Mo. 1899, § 865, forbidding reversal for any error not materially affecting the merits.

21. It was proper for the jury to take into account what deceased was earning, his capacity to earn, and probable duration of his life, the contingencies to which his life was subject, and estimate how much of his earnings would probably have inured to his wife and child, and what the pecuniary value of his services to them would have been.

22. In an action against a railroad company for the death of a servant owing to cars escaping to the main track from a siding, there was no error in admitting evidence that derailing switches were in use in other side tracks on this road, nor in admitting in evidence the printed rules of the company regarding the precautions to be taken to prevent cars escaping from a side track.

In Banc. Appeal from Circuit Court, Jackson County; Jno. W. Henry, Judge.

Action by Mary Jones, individually and as next friend of Mary Jones, an infant, against the Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

L. F. Parker and Pratt, Dana & Black, for appellant. William Moore and James A. Reed, for respondents.

VALLIANT, J.

David R. Jones, who was the husband of the plaintiff Mary and the father of the infant Mary, was a locomotive engineer in the service of the defendant, and was killed in a railroad accident at La Cygne, a station on defendant's road, in...