Limekiller v. Hannibal & St. J. R. Co.
Decision Date | 07 January 1885 |
Docket Number | 3292 |
Citation | 33 Kan. 83,5 P. 401 |
Court | Kansas Supreme Court |
Parties | JOHANNA LIMEKILLER, Administratrix, &c., v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY |
[Copyrighted Material Omitted]
Error from Atchison District Court.
ACTION brought by Johanna Limekiller, as administratrix of the estate of Frederick Limekiller, deceased, against the Hannibal & St. Joseph Railroad Company, to recover $ 10,000 damages, alleged to have resulted from the gross and wanton negligence of the railroad company in running one of its locomotives and trains upon and against the said Frederick Limekiller, in Wyandotte county, in this state, on May 27, 1881, thereby wrongfully causing the death of the said Limekiller. The amended petition was filed March 26 1883. On May 4, 1883, the railroad company filed its answer as follows (omitting title and court):
On August 3, 1883, the plaintiff filed her demurrer to the fourth defense set up in the said answer, as follows (omitting title):
"Comes now the plaintiff and demurs to the fourth defense set up in the defendant's answer, on the ground that it does not state facts sufficient to constitute a defense to said petition, or any part thereof."
On August 6, 1883, the demurrer came on for argument before the court, and after hearing the argument of counsel for the respective parties, the court sustained the demurrer, the defendant excepting. Thereafter the plaintiff filed its reply, which contained a general denial of each and every allegation set forth in the answer. Trial at the March Term, 1884, of the district court, when the jury made certain special findings of fact, and rendered a verdict for plaintiff for $ 4,000. Thereupon the railroad company moved for judgment in its favor upon the statements in the pleadings, which motion was, on March 15, 1884, overruled. The defendant also filed its motion to set aside the general verdict rendered in the cause, and for judgment in its favor upon the special findings of fact rendered by the jury. This motion was also overruled, and thereupon the defendant moved the court to vacate the verdict and grant a new trial. This motion was sustained, the court deciding that the special finding of fact No. 1, submitted by the plaintiff, and special finding of fact No. 39, submitted by the defendant, were conflicting and not in harmony with each other; further, that the special finding of fact No. 39 was in conflict with the general verdict. The general verdict was thereupon set aside and a new trial granted. Upon the trial it was admitted by the parties to the action, among other things, that the plaintiff was appointed administratrix of the estate of Frederick Limekiller, deceased, by the probate court of Platte county, Missouri, on July 8, 1881, and duly qualified as such, and entered upon the duties of such office.
The sections of article 5, ch. 1 of the referred to in the fourth defense of defendant's answer, as published in the Revised Statutes of Missouri, are as follows:
Section 2121 of ch. 25, Rev. Stat. of Missouri (1879), reads:
Section 2122 reads:
"Whenever the death of a person shall be caused by a wrongful act neglect or default of another, and the act, neglect or default is such as would, if death had...
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