Kelly v. Union Pac. Ry. Co.

• Decision Date: 24 January 1910
• Citation: 125 S.W. 818,141 Mo. App. 490
• Parties: KELLY v. UNION PAC. RY. CO.
• Court: Missouri Court of Appeals

125 S.W. 818

141 Mo. App. 490

KELLY v. UNION PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

January 24, 1910.

Rehearing Denied February 21, 1910.

1. DEATH (§ 9) — KILLING IN ANOTHER STATE — RECOVERY — NATURE AND EFFECT.

Under Rev. St. Wyo. 1899, §§ 3448, 3449, creating an action for wrongful death by the administrator of the intestate, the sum recovered to be distributed to those entitled to the estate, the sum recovered is not assets of the estate, the administrator being a mere trustee to maintain the action for those entitled to damages, and hence Laws Mo. 1905, p. 95 (Ann. St. 1906, § 548), authorizing the maintenance of an action for wrongful death in Missouri by an administrator appointed in another state where the cause of action accrued, was not unconstitutional as transferring the assets of a Wyoming estate to Missouri.

2. COURTS (§ 488) — JURISDICTION — CONSTITUTIONAL QUESTIONS — SUPREME COURT — TRANSFER TO COURT OF APPEALS — EFFECT.

Where the jurisdiction of the Supreme Court was based on an alleged constitutional question, the court's granting a motion to transfer the cause for hearing to the Court of Appeals operated to eliminate all constitutional questions.

3. MASTER AND SERVANT (§ 285) — DEATH OF SERVANT — CAUSE — EVIDENCE.

In an action for the death of a switchman while riding at night on the side of a freight car, evidence held to warrant a finding that he was struck by a wheelbarrow negligently left in the yard by a repair crew between the tracks.

4. DEATH (§ 76) — WRONGFUL DEATH — CAUSE — EVIDENCE.

Where decedent's death may have resulted from one of two causes, for only one of which defendant is liable, plaintiff must show with reasonable certainty that the cause for which defendant is liable produced the result.

5. MASTER AND SERVANT (§ 191) — "FELLOW SERVANT."

The term "fellow servant" in its general sense is exceedingly broad, and would include all servants of the same master, but, as applied to the liability of a master for injuries to a servant, it is a technical expression, which when confined within the reason for its adoption, as a rule of law, precluding a servant from recovering for injuries caused by another servant, on the theory that, if a servant knows he is without remedy for his injury by the negligence of his fellow servant, he will keep watch on such fellow and report his delinquency to the correcting power, is limited to servants working in the same general department under the same correcting power or head.

6. MASTER AND SERVANT (§ 191) — DEATH OF SERVANT — FELLOW SERVANTS — SWITCHMAN AND CAR REPAIRER.

A switchman under the control of the railroad company's train master and a car repairer in the mechanical department of the railroad company under the general management of its master mechanic were in different departments of service, and were therefore not fellow servants at common law.

7. WORDS AND PHRASES — "ACCORDANCE WITH COMMON LAW."

Where an action for death of a servant was not heard by the trial court under any fellow-servant statute, but under the rules of the common law relating to that subject as the court understood them, such rules, if not correctly understood or interpreted, did not afford ground for an objection that the question was not decided in "accordance with the common law," which defendant claimed was applicable, but merely showed that the court erred.

Appeal from Circuit Court, Linn County; John P. Butler, Judge.

Action by A. D. Kelly, as administrator of the estate of James E. Sims, deceased, against the Union Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Douglass & Watson, R. W. Blair, and N. H. Loomis, for appellant. Bresnehen & West, for respondent.

ELLISON, J.

James E. Sims was engaged in defendant's service as a switchman in its yards at Cheyenne, in the state of Wyoming. While so engaged he was killed by cars he was assisting to switch from one track to another. The plaintiff is administrator of his estate, appointed in the state of Wyoming. He brought this action against defendant in Linn county, Mo. Under the laws of Wyoming, an action is given to the administrator for the death of his intestate caused by the negligence of another, the sum recovered to be distributed to those entitled to his estate (sections 3448, 3449, Rev. St. Wyo. 1899); and by the laws of this state such an action accruing in another state may be brought in this state by the administrator appointed in the state where the action accrued (Laws Mo. 1905, p. 95 [Ann. St. 1906, § 548]). By a process of statement and reasoning that we regard as ill-founded, defendant insists that by allowing the action to be brought in this state it is transferring the assets of an estate in Wyoming to this state, and therefore violates the Constitution, state and federal. It is not transferring assets. The sum recovered is not assets of the estate. The administrator is a mere trustee to maintain an action for the benefit of those entitled to the damages, as they are named in the statute. McCarty v. Railway Co. (C. C.) 62 Fed. 437; Elliott on Railroads, § 1372; White's Personal Injuries, § 71. However that may be, the matter has been disposed of by the Supreme Court. The amount of the judgment was above the appellate jurisdiction of this court when it was obtained, and for that reason the appeal was taken to the Supreme Court. Before it was heard in that court the jurisdiction of this court was raised by the statute to a sum greater than the judgment, and by provision of the statute all cases pending unsubmitted in the Supreme Court which fell within the jurisdiction of this court as thus increased were to be transferred to this court. Accordingly counsel for plaintiff filed a motion to transfer the case to this court, and counsel for defendant opposed the motion, suggesting that, while the amount involved was within the jurisdiction of this court, the constitutional questions were in the case, and therefore jurisdiction remained in the Supreme Court, since in all cases involving a construction of the state or federal Constitution the Supreme Court alone had jurisdiction. Nevertheless, the latter court transferred the case to this court, which, in our view, eliminates all alleged constitutional questions.

To repeat all the matter related in the briefs of counsel as to the death of the deceased and its cause would take much space. For all practical purposes, it will be only necessary to state that, as already said, deceased was one of defendant's switchmen. At the time of his death he was engaged, in the nighttime, in assisting to switch cars from one track to another. It was his duty to get on cars which had been "kicked" onto another track, and ride to the place where they were to be stopped. The cars involved here were pulled out from one track and "kicked" down another track towards the east. Deceased got on the outside of the head car, and started to ride it down to the place where he would stop it. The car had a metal stirrup as the foothold one would take in getting on top the car or could stand on with one foot while clinging to the car and riding a short distance by holding to the ladder with his hand and the other foot unplaced, or, perhaps, on the oil box to the side and over the wheel of the car. A wheelbarrow had been left near the track, at not a great distance down, and it is plaintiff's theory that this barrow, being negligently left so near the track, was struck by the deceased with a portion of his body as he rode along on the side of the car, and that he was thus knocked so that his foothold was loosened, and, clinging with his hands, he finally was caught by the wheels and mangled to death. No one saw him fall, but one of the crew, noticing he did not return, became uneasy and went along the track. He stated: "I started down the right-hand side of No. 7 going east. In about 8 car lengths from the lead, maybe more, maybe less, I came against a wheelbarrow turned upside down, about between 10 or 15 feet I found the lamp that Sims carried lying on the side and out, about 5 feet further I found his cap, then whistled for him. By that time I was alarmed. I walked on down several car lengths — don't know exactly, I didn't count them — and I saw his glasses, and further on a place where something had dragged commenced to appear alongside the track. Must have been Sims' body. I don't know. Well, I went down the track, looking for something, expecting to find Sims hurt. At about 5 and 8 car lengths from where I found his cap I found part of his entrails across the rail and more between the track. Then I hurried along a little...