Missouri Pac. Ry. Co. v. Barber

• Decision Date: 03 July 1890
• Citation: 44 Kan. 612,24 P. 969
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. MARY A. BARBER, as Administratrix of the estate of J. F. Barber, deceased
• Court: Kansas Supreme Court

24 P. 969

44 Kan. 612

THE MISSOURI PACIFIC RAILWAY COMPANY v. MARY A. BARBER, as Administratrix of the estate of J. F. Barber, deceased

Supreme Court of Kansas

July 3, 1890

Error from Morris District Court.

THE opinion contains a sufficient statement of the case. Judgment for the plaintiff Barber, at the April term, 1888, for $ 4,000 damages. The defendant Company brings the case to this court.

Judgment affirmed.

David Kelso, for plaintiff in error.

J. K Owens, L. B. Kellogg, and T. N. Sedgwick, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This suit was commenced on the 22d day of February, 1887, in the district court of Morris county, by Mary A. Barber administratrix of the estate of J. F. Barber, deceased, to recover damages against the Missouri Pacific Railway Company for the death of the said J. F. Barber, caused by the wrongful acts of the railway company. The petition alleges that the intestate, at the time of his death, left surviving him as his next of kin this plaintiff, who was and is his mother. The first question raised is that the petition does not state a cause of action. This question was raised by an objection to testimony under the petition, and by a demurrer to the evidence. The argument in support of it contained in the brief of the plaintiff in error is, "that the plaintiff below had no right to sue and recover a judgment in this case for her individual benefit." "There is no allegation that he did not leave a widow or children." "The mother's right to recover in this case is dependent upon the non-existence of a widow or children of the intestate, which she must allege and prove."

This action is brought under § 422 of the civil code by the personal representative of the deceased, and in the event of a recovery the judgment inures to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. A judgment in favor of the personal representative of the deceased is a bar to any other action for the same cause. The distribution of the amount of the recovery is a matter to be determined by the probate court, out of which the letters of administration issue. It does not concern the railroad company. This action is rightfully brought by the personal representative, and all allegations about next of kin are only for the purpose of showing that the deceased left heirs. There is no force in the objection to the sufficiency of the petition.

The deceased was a young man about nineteen years old, contributing to the support of his mother, and employed as a brakeman on the train of the defendant railroad company. He was killed at Emporia, early in the morning, while in the act of coupling two freight cars. One of these cars was the ordinary freight car in use on that road, with a single deadwood bumper; the other was a Pennsylvania Central freight car, having double dead-wood bumpers--one on each side of the draw-head. The standing car was the Missouri Pacific one; the Pennsylvania Central car being the moving one. The brake-beam of the moving car was out of repair, swinging loose in such a manner that when the cars struck together it swung entirely out of its place and struck the deceased (who was endeavoring to make a difficult coupling) on the legs, knocked him down onto the track, lacerated and injured one of his limbs, by stripping off the flesh to the bone from near the ankle to the knee, held him fast, and caused his death.

It is said by counsel for plaintiff in error that there is no evidence that tends to show that the death was caused by the brake-beam. The only witness who was standing in a position to clearly see, so states. He was an employe of the railroad company; he is illiterate and unskilled in expressions, but his story is a well-connected narrative, and consistent in every respect; and in addition to this, the defective condition of the brake-beam is established by other evidence. The railroad company offered no evidence. The injury resulting in the death of the young man is not attempted to be accounted for on any other theory. The fact of injury, resulting in death, occurring at the time the deceased was engaged in making the coupling of these particular cars, is established beyond question. The defective condition of the brake-beam is fairly well proven, and this supports the story of the eye-witness, and makes it consistent with all the attending circumstances. Under the stress of these facts, the jury could not have come to any other conclusion but that the death was occasioned by the defective brake-beam.

The remaining questions in the case arise out of the inquiry as to whether the railroad company or the brakeman had notice of this defective brake-beam. The record gives no account of the Pennsylvania car, except at...