Missouri v. McWherter

• Decision Date: 07 May 1898
• Docket Number: 10569
• Citation: 59 Kan. 345,53 P. 135
• Court: Kansas Supreme Court
• Parties: MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. DAISY MCWHERTER, Administratrix

53 P. 135

59 Kan. 345

MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. DAISY MCWHERTER, Administratrix

No. 10569

Supreme Court of Kansas

May 7, 1898

Decided January, 1898.

Error from Bourbon District Court. J. S. West, Judge.

Judgment affirmed.

T. N Sedgwick, for plaintiff in error.

W. P Dillard, W. W. Padgett and J. I. Sheppard, for defendant in error.

OPINION

ALLEN, J.

The receivers in charge of the M. K. & T. Railway Company entered into a contract with the Union Bridge Company for the construction of the superstructures of certain iron and steel bridges, among which was one across the Neosho River, near Osage Mission. The contract contained, among others, the following provisions:

"Third. The work herein specified and in the specifications and the plans and drawings to be prepared in accordance therewith shall be executed under the direction of the superintendent of bridges and buildings of the parties of the second part, as aforesaid, or his assistants; and the superintendent of bridges and buildings shall have the power to reject all work and material that shall not be in accordance with the strain sheets and specifications and with the spirit of this agreement."

"Seventh. It is hereby mutually agreed that if any labor is done or material furnished by either party to this contract to the other, that the same shall be paid for by the parties receiving the same, at the actual cost thereof to the parties doing or furnishing the same. Bills shall be rendered monthly for all such labor and material, and settlements therefor shall be made independently of the payments on this contract and by separate vouchers."

"Twelfth. The parties of the second part shall furnish the lower false work in place and the material necessary and proper for the erection of the new spans, and shall remove and pile up the old bridges before the erection of the new ones, and shall remove the false work after the erection of the spans. They shall also furnish and put in place the ties and guard rails, and do all the necessary masonry pertaining to the bridge seats."

Before the construction of this bridge, the Railway Company regained possession of the road from the receivers; and work under the contract was continued in accordance with the terms of the contract made by them. Adam McWherter was employed by the Bridge Company. Two gangs of men were employed on the work at the same time. The gang of the Bridge Company was under Rockwell, as general foreman, and Porter, as gang foreman. The railroad gang was in charge of W. R. Gilbert, as foreman. As the new bridge was constructed, the old one, which was in use for the passage of trains, was removed in sections corresponding with the sections of the new structure. The Railroad Company had constructed the false work on which were placed what are termed pony bents, four to four and a half feet high, supporting the stringers on which the track rested. These stringers were made of large timbers eight by sixteen inches in dimensions, bolted together in pairs. McWherter was directed by his foreman to go with others and help remove the old bridge. They first removed the iron and ties. He then took his place on the false work, with fifteen or twenty other men, part of whom belonged to the bridge company gang and the others to the railroad gang. Mr. Gilbert, the Railroad Company's foreman, who stood at one end of the part of the structure they were about to remove, directed them to roll one of the stringers off at the side and let it fall below. This was done. He then told them to roll the other the same way, and let it go below. The men obeyed his direction by putting their hands against the stringer and rolling it. As they did so, one end, where it had been sawed in two and which had rested on a prop, dropped from the prop and caused one of the bents also to fall, striking McWherter and knocking him off the false work to the water below. From the injuries so sustained he died the same day.

This action was brought by his daughter, Daisy McWherter, as administratrix of his estate. In her petition she alleges that her father's death was caused by the negligence of the foreman; that the stringer had been sawed off, as he well knew, of which fact the deceased was not informed, nor could he from the position he occupied see that it was sawed off and liable to fall; that when it was rolled over it fell, and it, and the bent on which it rested, fell on McWherter, knocking him from the floor on which he stood to the ground and water below, thereby causing his death. To the petition the defendant answered denying generally the matters stated in the petition, except those directly admitted. The execution of the contract with the Bridge Company by the receivers, and the return of the property to the Railroad Company, were admitted; and it was admitted that McWherter was an employee of the Bridge Company. It was then alleged that R. E. McWherter, the widow of the deceased, had presented to the Bridge Company a claim for the death of her husband through the negligence of the Bridge Company and its employees; that said claim had been settled, and a written agreement entered into, discharging the Bridge Company from all liability therefor in consideration of the payment of two hundred and fifty dollars. A copy of the agreement was attached to the answer, and it contains a recital to the effect that she claimed that the death of her husband was caused by the negligence of the Bridge Company, and that they denied that it was so caused; and that, for the purpose of compromising all differences between them, and in consideration of two hundred and fifty dollars, she released them, and all their servants and employees, from all claims on account of the death of said McWherter. It also contains this clause:

"This release shall not be construed to in any way affect or impair any right or claim which the party of the first part may have against the Missouri, Kansas & Texas Railroad Company, its agents, servants, or employees."

It was claimed by the Railroad Company that this settlement, having been made by the widow before the appointment of an administratrix, operated as a settlement and discharge, not only of the Bridge Company but of the Railroad Company as well. As a further defense, the answer also alleged that R E. McWherter brought an action against the Railway Company for the identical claim sued on by the plaintiff in this case; that after a jury had been impaneled to try the case, and a witness had been called on to testify, the defendant objected to the introduction of any testimony, on the ground that the written release of the Bridge Company above mentioned operated as a complete discharge of the liability of the defendant; that the objection was sustained by the court and the action thereupon dismissed. A copy of the journal entry in that case is attached to the answer in this, and shows that "the court dismissed said action. without prejudice at the cost of the plaintiff." The answer also alleges that the plaintiff has no legal capacity to sue; that she has not been legally appointed administratrix; that the probate court had no jurisdiction to appoint her; that she had no legal capacity to receive an appointment of administratrix, being under the age of eighteen years at the time of her appointment, and a non-resident of the State of Kansas. Other matters of defense are also stated, which it is unnecessary to refer to. The plaintiff replied with an unverified general denial of the new matter contained in the answer. When the case was called for trial, the defendant objected to the introduction of any testimony, on the ground that the defendant was entitled to judgment on the pleadings. The court overruled the...