Kansas City Southern Ry. Co. v. Henrie
| Decision Date | 06 July 1908 |
| Parties | KANSAS CITY SOUTHERN RY. CO. v. HENRIE et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Miller County; J. M. Carter, Judge.
Action by Ollie M. Henrie and others against the Kansas City Southern Railway Company for negligent death. From a judgment for plaintiffs, defendant appeals. Affirmed on condition of remittitur; otherwise reversed and remanded for new trial.
G. W. Henrie, who was employed by the Kansas City Southern Railway Company as conductor on a work train, was killed on November 6, 1905, while attempting to couple cars in his train at Horatio, Ark., and his widow, Ollie M. Henrie, and his three infant children instituted this action in the circuit court of Miller county to recover damages alleged to have been sustained on account of his death. The damages are laid at the sum of $50,000, and on a trial of the case the jury returned a verdict in favor of the plaintiffs, assessing damages in the sum of $32,500. Negligence of the company is charged in permitting the drawheads of the cars to become rotten and defective, so that, when Henrie went in between the cars to adjust the coupling, the drawheads passed each other, and allowed the two cars to come together and catch him and crush him to death instantly. It is also alleged in the complaint that the plaintiffs are the widow and only heirs at law of said decedent, and that no administrator of his estate had ever been appointed. The defendant filed its answer, denying all the allegations of the complaint. The material facts established by the testimony are discussed in the opinion of the court.
S. W. Moore and Read & McDonough (C. B. Moore, of counsel), for appellant. N. B. Morris, Weeks & Whitley, and W. H. Arnold, for appellees.
McCULLOCH, J. (after stating the facts as above).
1. It is contended in the first place that the testimony fails to show that appellees were the only children and heirs at law of the decedent, or that there was no personal representative of his estate. The statutes of this state provide that an action for damages, caused by the wrongful act, neglect or default of another, "shall be brought by, and in the name of the personal representative of such deceased person, and if there be no personal representative, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate." Kirby's Dig. § 6290. Where there is no personal representative of the decedent all the heirs at law who could take as distributees of the estate under the laws of descent must be joined in the action. McBride v. Berman, 79 Ark. 62, 94 S. W. 913. The only testimony bearing on these points was that of Mrs. Henrie, and is as follows: She also testified in detail concerning his care and treatment of the children, and stated that he contributed nearly all his earnings to the support of the family. She was not cross-examined on this subject. It is argued that the proof does not negative the fact that Henrie died testate, and that there was an executor of his estate, nor that he may have married and had living issue of that marriage prior to his intermarriage with appellee, Mrs. Henrie. This is, we think, a strained construction of the testimony. True it does not expressly negative these facts, but it does so by fair implication. The use of the word "administration," as applied to estates of deceased persons in its common and popular acceptation is sufficiently comprehensive to cover the meaning of an executorship. It is so defined by the lexicographers. Webster's: Our statute treats of executors, as well as administrators, in a chapter under the general subject of administration. The law writers on the subject treat it in the same way. See, also, In re Murphy, 144 N. Y. 557, 39 N. E. 691; Crow v. Hubbard, 62 Md. 560. Nor does the testimony leave room for an inference that there may have previously been administration on the estate. The testimony of Mrs. Henrie leads fairly and irresistibly to the conclusion that the children named were all that her husband had. She testified concerning their marriage, and the names and ages of all their children, and it can scarcely be inferred that there had been another marriage and set of children born, when the record is entirely silent on the subject. It is fairly to be presumed that, if there had been children of a former marriage, Mrs. Henrie knew of it. Appellant did not, by asking an instruction on the subject, treat the question as an issue in the case. Aside from a formal denial in the answer of the allegations of the complaint concerning administration and next of kin, appellant does not appear to have insisted on the question until the case reached this court.
2. Do the facts established by the evidence sustain the verdict as to negligence? Deceased was, at the time of his death, a conductor in charge of a work train, and was engaged in hauling gravel for ballast from Horatio, Ark. The cars of his train had been loaded, and some of them were standing on a curved "Y" track. Other cars were attached to the engine. Orders were received to move the train south to another station in time to meet a north-bound passenger train, and it became necessary to couple together the cars hurriedly, as the time for meeting the other train was very short. He went to the end of the cars on the "Y," and signaled the engineer to back up, so that these cars could be coupled into the train. Willis Martin, a witness introduced by appellees, testified that he was present and saw the injury inflicted. He said that Henrie went between the ends of the standing and approaching cars to adjust the couplers, that the cars came together the first time without coupling, and without accident, but that a second attempt was made to couple them, and as they came together, the drawheads passed each other, so as to permit the ends of the cars to come together close enough to catch Henrie and crush him. He also testified that immediately after the accident the wood or timber supporting the drawhead was found to be rotten. He said: "You could mash it this way [indicating], and it would crush." He said a drummer standing by pulled a piece of rotten wood from around, or next to, the drawhead with his hand. The timbers next to the iron drawheads are explained, by one of appellant's witnesses, to be draft timbers or middle sills, which run through the center of a car from end to end, and lie on either side of the couplers and hold them in place. The end of these timbers was manifestly what the witness Martin referred to when he said that the drummer pulled out a piece of rotten wood. George Hawkins, another witness introduced by appellee, testified that he was present and saw the accident, that the cars failed to couple on the first attempt, and that when Mr. Henrie went in between them the second time, the drawheads passed each other, allowing the cars to come close enough together to crush him. He also stated that the timber around the drawhead was rotten, and that a bystander, immediately after the accident, pulled out with his hand a portion of the decayed wood. These were the only eyewitnesses who testified in the case, except the engineer and fireman, who did not pretend to know all the details of the accident. It is shown by the testimony of another witness that the drawheads could not have passed each other if they had been properly constructed and were in good repair. One of appellants employés, whose duty it was to inspect cars at Horatio, testified that he inspected the cars in question the morning before the accident, and also in the afternoon after the accident, and next day, and found them at each inspection to be in good condition and without defects. He testified that there were running boards on the end of each car, which, when two cars came as close together as the couplers would permit, would leave only a clear space of six inches. He and several other witnesses testified that tests of these two cars between which Henrie was injured were made on the curved "Y" track where the injury occurred, and that the result of the tests showed that when the cars came together on the curve (the couplers meeting, without passing) the running boards came together close enough to catch and hold a two-inch board. These tests, if correct, demonstrated the fact that, with the couplers coming together properly, there was not sufficient clear space between the running boards to accommodate a man's body. There was also testimony tending to show that after the accident blood was found on the running boards. It will be seen, therefore, that the theory of appellees is that Henrie went between the cars to adjust the defective couplers, or those which at least had failed to...
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