Lee v. Missouri Pac. Ry. Co.

Decision Date26 February 1906
PartiesLEE et al. v. MISSOURI PAC. RY. CO.
CourtMissouri Supreme Court

Rev. St. 1899, § 548, declares that when a cause of action accrues under the laws of another state, and the person entitled to the benefit of it is not authorized by the law of the foreign state to prosecute the action, the suit may be prosecuted in this state by a person to be appointed by the court here for that purpose. Gen. St. Kan. 1901, pp. 1002, 1003, provides that if a person killed by the negligence of another, is a resident of the state and no personal representative has been appointed, an action may be maintained by the widow. Held, that the widow of a resident of Kansas, killed in that state by the alleged negligence of another, may sue in this state for the negligent injury, and the fact that in such suit she was unnecessarily appointed trustee for her children, did not either take away or increase her right of action.

7. COURTS—RULES OF DECISION.

While, in an action for death caused by a negligent injury inflicted in another state, the court must yield to the decisions of the highest court of that state as to the law of that state, it is at liberty to differ from the judgment of the foreign court as to the application of the law to the facts.

8. MASTER AND SERVANT—PERSONAL INJURIES —QUESTIONS FOR JURY — ASSUMPTION OF RISK.

In an action for the death of a switchman, alleged to have been caused by negligent failure of the railway company to block its tracks in a switchyard, evidence held sufficient under the laws of Kansas to require submission to the jury of the question whether deceased was aware of the danger arising from the absence of blocks.

9. SAME—CONTRIBUTORY NEGLIGENCE.

In an action for the death of a switchman, alleged to have been caused by negligent failure of railway company to block its tracks in a switchyard, evidence held sufficient under the laws of Kansas to require submission to the jury of the question whether deceased was guilty of contributory negligence.

10. SAME—NEGLIGENCE OF MASTER.

In an action for the death of a switchman, alleged to have been caused by negligent failure of railway company to block its tracks in a switchyard, evidence held sufficient under the laws of Kansas to require submission to the jury of the question whether defendant was negligent.

11. SAME — EVIDENCE OF NEGLIGENCE — CUSTOMARY SAFEGUARDS.

In an action against a railway company for the death of a switchman, alleged to have been caused by negligence of defendant in failing to block its rails in a switchyard, evidence of general custom in well equipped yards to have tracks blocked, was admissible, but evidence that one or two other companies blocked their tracks, was not.

12. APPEAL—HARMLESS ERROR—ADMISSION OF EVIDENCE.

In an action against a railway company for the death of a servant alleged to have been killed because of defendant's negligent failure to block its tracks in a switchyard, in which it was undisputed that defendant had at one time blocked its tracks, the erroneous admission of evidence that certain other railways having switchyards in the town where the injury occurred had their tracks blocked, was harmless.

13. MASTER AND SERVANT — PERSONAL INJURIES —INSTRUCTIONS.

In an action for negligence causing death, an instruction that if the jury found certain facts plaintiff was entitled to recover, unless they also found that deceased had assumed the risk or was guilty of contributory negligence as defined in other instructions, was not erroneous because of the absence of other instructions specifically defining either assumption of risk or contributory negligence, where all the facts upon which defendant based its claim that deceased had assumed the risk or was guilty of contributory negligence, were set out in other instructions which stated that if the jury found that such facts existed, plaintiff could not recover.

14. APPEAL—HARMLESS ERROR—INSTRUCTIONS —MEASURE OF DAMAGES.

In an action for negligence causing death, in which damages were limited by statute to $10,000, an erroneous instruction impliedly authorizing the jury to fix the damages at such sum, not exceeding $10,000, as deceased might probably have earned during his expectancy of life, was not cause for reversal, where the probable earnings would have been about $35,000 and the jury awarded only $8,000.

15. MASTER AND SERVANT—INJURIES TO SERVANT —INSTRUCTIONS—ASSUMPTION OF RISK.

In an action for negligence alleged to have caused the death of a servant, requested instructions that if deceased had means and opportunities of knowing of the danger which caused his death plaintiff could not recover, were properly refused because disregarding the question as to whether or not the danger was such that the servant might reasonably have hoped to avoid it by the use of ordinary care.

Marshall, Burgess, and Fox, JJ., dissenting.

Appeal from Circuit Court, Jackson County; Edward P. Gates, Judge.

Action by Susan A. Lee and others against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Elijah Robinson, for appellant. Frank P. Walsh, Rozzelle, Vineyard & Thatcher, and John G. Park, for respondents.

PER CURIAM.

The following opinion by VALLIANT, J., in Division No. 1, is adopted as the opinion of the court in banc. BRACE, C. J., and GANTT, VALLIANT, and LAMM, JJ., concur. MARSHALL, J., dissents. BURGESS and FOX, JJ., dissent on the ground that in their opinion the deceased was guilty of contributory negligence.

VALLIANT, J.

Plaintiff Susan A. Lee is the widow and the other plaintiffs are the minor children of Harvey A. Lee, deceased, who met his death in defendant's yards at Atchison, Kan., where he was in the service of defendant as a switchman. At the time of the accident deceased was one of a crew engaged in switching cars, he was walking or running between cars in a moving train in the act of drawing the coupling pin; his foot was caught and fastened in an unblocked space between a guard rail and a track rail, he was thrown down and run over and killed. The suit is founded on a statute of Kansas which is set out in the petition, the terms of which will be hereinafter stated. The negligence charged in the petition is that the blocking between the main rail and the guard rail had been allowed to become rotten, defective, worn out, and had disappeared; that defendant had neglected to block the interval and repair the defect, so that there was in fact no protection against entrapping the foot between the rails; the guard rail was defective and unsafe in that the ends thereof had not sufficient flare, the entrance to the same was short and narrow and calculated to seize and hold the foot of one walking over it; that defendant knew, or by the exercise of ordinary care would have known, the condition, yet failed to repair or remedy the defect and deceased was ignorant of it. The answer admits the relationship of the parties, the occurrence of the accident, but denies the allegations of negligence, pleads contributory negligence, also that the deceased was an experienced switchman, knew the condition of the tracks, yards, etc., and that under the laws of Kansas he had no right to recover, and none under the laws of Missouri. Reply general denial.

The suit was originally instituted by Susan A. Lee as widow and the minor children by John McKinney their next friend, appointed by the court for that purpose, but after the institution of the suit the next friend died, and thereupon the court, on the petition of Susan A. Lee, appointed her trustee for the children to prosecute the suit, and an amended petition was filed in the name of Susan as widow, and also as trustee for the children as plaintiffs. The record shows that the deceased was a...

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