Keele v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 07 November 1910
• Citation: 131 S.W. 730,151 Mo. App. 364
• Parties: KEELE v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Court of Appeals

131 S.W. 730

151 Mo. App. 364

KEELE v. ATCHISON, T. & S. F. RY. CO.

Kansas City Court of Appeals. Missouri.

November 7, 1910.

Rehearing Denied November 21, 1910.

1. DEATH (§ 8)—CAUSE OF ACTION—ACCRUAL —WHAT LAW GOVERNS.

Where decedent was killed at a public railroad crossing in Kansas by collision with defendant's train, the cause of action accruing to decedent's next of kin, if any, arose in Kansas, and was dependent on and controlled by the statutes of that state.

2. DEATH (§ 31)—WRONGFUL DEATH—RIGHT TO SUE.

Under the laws of Kansas, an action for death caused by wrongful act is maintainable only by the person who by the terms of the Kansas statutes is authorized to sue.

3. DEATH (§ 31)—WRONGFUL DEATH—RIGHT TO SUE—NEXT OF KIN—KANSAS LAWS.

Gen. St. Kan. 1899, § 4686, provides that in the case of wrongful death the personal representatives of the decedent may sue if the decedent might have maintained an action had he lived, and that the damages shall inure to the exclusive benefit of the widow and children, if any, of the next of kin, to be distributed as personal property of deceased. Section 4687 provides that in case of a nonresident, or a resident having no personal representative, the action may be brought by the widow, or if none, by decedent's next of kin. Held, that if the deceased is survived by a widow and children, and no administrator is appointed, the widow may prosecute the action in her own name as sole plaintiff, both for herself and as trustee of the interests of the children, but, if there is no widow or children and no administrator, the right of action is preserved for the next of kin, taking in common; so that where a child died, leaving her parents as her next of kin, each of whom was entitled to a moiety of her estate, and the father, having instituted suit for wrongful death, died before judgment, his interest did not die, but descended to his heirs, viz., his widow and children, and hence the widow could not thereafter continue the action as representative or trustee of the children, but they should have been joined as necessary parties and represented in the action by guardian.

4. PARTIES (§ 96) — DEFECT OF PARTIES — WAIVER.

Where defendant, after the overruling of its demurrer for defect of parties, answered to the merits, the objection was waived.

5. DEATH (§ 42) — WRONGFUL DEATH — PARTIES—FAILURE TO JOIN.

Gen. St. Kan. 1899, §§ 4686, 4687, creating an action for wrongful death, the damages to accrue under certain circumstances to the benefit of decedent's next of kin, does not make the joinder of all of the next of kin as parties plaintiff an indispensable requisite of the prosecution of the action, and hence, if any of the next of kin refuse to join as plaintiff, they may be made defendants and the action prosecuted by those of the class who do join as plaintiffs, so that the omission of any of the class is not a jurisdictional defect, but one that may be waived.

6. RAILROADS (§ 333)—CROSSING ACCIDENT— CONTRIBUTORY NEGLIGENCE.

Where decedent, a girl in her fifteenth year, attempted to cross a railroad at a public crossing without looking or listening and with her head averted, probably to avoid facing a storm of sand laden wind that was blowing, and was struck and killed by an approaching train, she was guilty of contributory negligence as matter of law.

7. RAILROADS (§ 338)—CROSSING ACCIDENT— HUMANITARIAN DOCTRINE.

Decedent, a girl in her fifteenth year, with head averted to protect herself from facing a storm of sand laden wind, attempted to cross defendant's railroad crossing a short distance west of the corporate limits of a city without looking or listening. The view of trains approaching from the west was obscured by standing freight cars until after pedestrians had passed through an opening provided for the crossing. Deceased, during the time she might have been seen by the engineer, did not look toward the train, but approached the crossing with her face averted, holding the rim of her hat down as a shield to her face from the stinging dust. The engineer did not blow the whistle nor ring the bell, and, just as deceased stepped on the track, the engine struck her and she was instantly killed. The whistle was blown for a station a mile and a half west of the crossing; but no other warning of the approach of the train was given, and, though there was nothing to prevent her hearing or seeing the train, it was evident that she was unaware of its approach. Held, that ordinarily careful and humane men, in the situation of the engineer, would have discovered decedent's real peril, and that she was unaware of her danger, in time to have saved her by blowing the whistle, and that the case was properly submitted under the humanitarian doctrine, notwithstanding plaintiff's contributory negligence.

8. RAILROADS (§ 351)—DEATH OF PEDESTRIAN — CONTRIBUTORY NEGLIGENCE—HUMANITARIAN DOCTRINE.

Where, in an action against a railroad company for death at a railroad crossing, plaintiff claimed the right to recover under the humanitarian doctrine, notwithstanding decedent's admitted contributory negligence, an instruction that, if the jury found that an ordinarily careful and humane person in the position of defendant's engineer or fireman would have discovered decedent approaching the track in time to have sounded a warning, and they failed to do so, plaintiff could recover, was erroneous for failure to further require that such ordinarily careful and humane person would have seen that deceased was oblivious to her danger, and if not warned would place herself in the way of the train.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Rosetta Keele against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thomas R. Morrow, Cyrus Crane, James P. Gilmore, and John H. Lathrop, for appellant. Bird & Pope, for respondent.

JOHNSON, J.

This action is prosecuted by the mother of Pearl Keele, deceased, to recover damages from defendant on the ground that the death of Pearl, who was a minor in her fifteenth year, was caused by the negligence of defendant. The child was killed about 6:30 p. m. May 7, 1906, at a public road crossing in Kansas, a short distance west of the corporate limits of Argentine. She was on her way home from a soap factory, where she worked, when she was struck by an east-bound passenger train and instantly killed. Her parents were both living at the time, and she had three brothers and two sisters, all minors. This suit was brought in Jackson county by her father and mother. Afterward the father died intestate at his home in Kansas. He left no estate, and no administrator was appointed. His death was suggested, and afterward the present plaintiff filed an amended petition, in which she asserted her right to proceed with the action as the sole party plaintiff, alleging "that plaintiff is the mother, and, under the laws of the state of Kansas, is the next of kin of Pearl E. Keele, deceased, late of Wyandotte county, Kan., Mathias W. Keele, the father of said Pearl E. Keele, having died since the commencement of this action, and no administrator has been appointed for her estate by any court, and said Pearl E. Keele left no husband or child surviving her."

In support of her sole right to the cause of action, plaintiff pleaded provisions of the Kansas statutes as follows: "That by sections 4684, 4685, 4686, 4687, and 2459 of the General Statutes of Kansas of 1899, and same being sections 420, 421, 422, and 422a of chapter 80, article 19, of the General Statutes of the State of Kansas of 1868, and section 2459 of the General Statutes of Kansas of 1899, and same being section 20, chapter 33, of the General Statutes of Kansas of 1868, it is provided as follows, to wit:

"`Sec. 4684. Actions that survive. Sec. 420. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.

"`Sec. 4685. Sec. 421. No action pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant.

"`Sec. 4686. An action for death; limitation, etc. Sec. 422. 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, of next of kin, to be distributed in the same manner as personal property of the deceased.

"`Sec. 4687. Damages. Sec. 422a. 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.'

"`Sec. 2459. Estate of wife; when to parents. Sec. 20. If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents.'"

Defendant demurred to the petition on these grounds: "(1) Because said amended petition does not state facts sufficient to constitute a cause of...