Mo. Pac. Ry. Co. v. Lewis

• Decision Date: 23 November 1888
• Citation: 40 N.W. 401,24 Neb. 848
• Parties: MISSOURI PAC. RY. CO. v. LEWIS.
• Court: Nebraska Supreme Court

24 Neb. 848

40 N.W. 401

MISSOURI PAC. RY. CO.

v.LEWIS.

Supreme Court of Nebraska.

November 23, 1888.

Syllabus by the Court.

L. died in Kansas, from injuries there, for which it is claimed that, if death had not ensued, the Missouri Pacific Railway Company, the party inflicting them, would have been liable to an action for damages. The statute of that state provides that an action may be brought against the party by the personal representative of the deceased. The widow, appointed under the laws of Nebraska administratrix of L., brought in the circuit court of this state a suit against the railway company. Held, that the suit can be maintained, the right of action not being limited by the statute to a personal representative of the deceased appointed in Kansas, and amenable to her jurisdiction. See Dennick v. Railroad Co., 103 U. S. 11.

The distribution of money, if recovered by the widow from the railway company, might be enforced by the courts of this state in the manner prescribed by the statute of Kansas. Id.

The judgment of the county court of W. county, Nebraska, granting letters of administration to the widow, the sole assets of the estate consisting of the claim against the railway company, held coram judice, and upheld.

The construction and operation of a railroad without blocking its frogs and switches is not negligence per se, of which a court will take judicial notice upon proof of the fact of such construction and operating, and failure to block the frogs and switches only.

In an action by an administratrix against a railroad company for damages for the death of her husband, where it was alleged in the petition that in constructing its line of railroad the defendant negligently failed to block its switches and frogs, by means of which the deceased, a brakeman employed by defendant, in coupling cars stepped his foot between the rails of a switch and became fastened there, by reason of which he was run over by the cars and killed. Held, that the plaintiff could not recover without the evidence of practical men that unprotected frogs and switches are inherently unsafe and dangerous when prudently and carefully worked and managed, and that blocking them materially lessens the danger of their use and management, and that such was generally recognized by those engaged in the construction and operation of railroads in the country or vicinity by the adoption and use of such improvement, or of evidence equivalent.

Error to district court, Lancaster county; FIELD, Judge.

Action by Nellie A. Lewis, widow and administratrix of Joseph B. Lewis, deceased, against the Missouri Pacific Railway Company, to recover damages for the death of plaintiff's husband. Judgment for plaintiff, and defendant brings error.B. P. Waggener and A. R. Talbot, for plaintiff in error.

W. H. Eller, for defendant in error.

COBB, J.

This cause comes to this court by petition in error from the district court of Lancaster county. The plaintiff in the court below is the widow and administratrix of Joseph B. Lewis, deceased. The petitioner alleges that the defendant is a corporation duly organized and existing by the laws of the states of Nebraska and Kansas, engaged in running and operating a line of railroad from Lincoln, Neb., to and through Parsons, Kan., at which place the defendant had used and operated a number of side tracks for making up trains, both of freight and passenger cars, and employed a number of hands in and about the switching and changing of cars of the defendant, and other cars used and controlled by it, from one track to another, in and about the yards of the defendant; that the defendant used a number of switch-engines in handling and changing its cars; that with each of said engines there was employed a crew of hands consisting of a conductor or yard-master, an engineer, a fireman, and from one to three brakemen, under the direct control of the conductor or yard-master; that in the construction of the switches and yard of the defendant, and in laying the tracks, the defendant carelessly and negligently, at or near the passenger depot at Parsons, and within 100 feet of the platform, put in for use what is known as a “frog,” and negligently failed to protect the same against the danger of its employes stepping into it unnoticed; that on April 1, 1886, the defendant employed the deceased, Joseph B. Lewis, as brakeman in and about its yards at Parsons, which employment required deceased to perform his duties at night as well as in day-time; that deceased was a stranger in Parsons, and unacquainted with the dangerous condition of the frogs in the side tracks of the yard; that while so employed, on the night of April 8, 1886, at 11 P. M., while discharging duty as brakeman, under direction of the conductor, at the place where the frog was unprotected, without knowledge of its unsafe condition, and without carelessness or negligence on his part, the deceased attempted to make a coupling of two cars standing over the frog, and stepped one foot into the frog, which immediately became fast, and was unable to extricate it; he gave prompt signal to stop the approaching cars, in plain view of the conductor and engineer, in ample time to have prevented injury; that the cars were backed onto and over deceased, crushing his limbs and body, from which he soon after died. That he was a stout and able-bodied man, 24 years of age, capable of earning, and did earn, from $50 to $75 per month; that after the death of deceased the plaintiff was duly appointed administratrix of his estate by the county court of Washington county, Neb., and prior to this suit letters of administration were issued to her. She further alleges that the deceased left no estate, excepting a few hundred dollars in personal property; that she was his wife at the time of his death and remains his widow; that she has no separate estate of her own; that by his death she has lost her means of support and is in destitute circumstances; that since his death there has been born to them a daughter, Josephine B. Lewis, who, with plaintiff, is next of kin to deceased; that said minor child is living, and is dependent on plaintiff for support; that by the reason of the death of her said husband by the carelessness, negligence, and wrongful acts of defendant, she has sustained damages in $5,000, for which she sues. The defendant answered both generally and specially, and moved the court for judgment on the issue under the pleadings, which was overruled, with leave to the plaintiff to amend her petition by setting up the Kansas statute as the cause of action, which amendment was made by the additional paragraph, that “the plaintiff further alleges that some time prior to April 8, 1886, to-wit, on the ______ day of ______ A. D. 18--, the legislature of the state of Kansas, by an act duly passed and approved for that purpose, and which said act was then in full force and operation, gave, clothed, and empowered the said Nellie A. Lewis, widow of the said Joseph B. Lewis, deceased, with authority to bring and maintain an action for damages resulting from his injuries aforesaid in any sum not exceeding ten thousand dollars, which statute, in its general provisions, is similar to the statute of the state of Nebraska in the remedy provided therein, and conforms thereto. A copy of a section of said act is hereto attached, marked ‘A,’ and made a part thereof, as follows: ‘(Sec. 4233,) 422. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury by the same act of omission. The action must be commenced in two years. The damages cannot exceed ten thousand dollars, and must inure 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.’ ”

The defendant filed its answer to the amended petition, denying all allegations not expressly admitted, and (2) denying that it constructed the tracks or switches referred to. (3) Admitting that Joseph B. Lewis was injured at Parsons, Kan., April 8, 1886, and about the same date died in Kansas; that prior to that date he was married; and that at his death Nellie A. Lewis was his wife, and as his widow survives him; and that since said date said child has been born as alleged. (4) Denying specially that the plaintiff was legally appointed administratrix of his estate. and alleging that the county court of Washington county, Neb., had no authority or jurisdiction to appoint an administratrix of said estate; and that the proceedings were illegal and void, and did not confer authority on the plaintiff to institute or prosecute this action against the defendant; and that this court has no jurisdiction of the subject. (5) Denying specially that the statutes of Nebraska and Kansas are substantially the same; that under the statute of Kansas the widow of deceased inherited one-half of the personal property of the deceased absolutely, and the fund provided by said statute was intended as a trust fund to be disposed of under the laws of the state of Kansas; and the said statute, referred to, could not and cannot be enforced beyond the jurisdiction of the courts of the state of Kansas. (6) Alleging that all injuries received by the said Joseph B. Lewis at the time stated in the petition were the result of carelessness and negligence on his part, and but for such carelessness and negligence at the time and under the circumstances he would not have been injured.

There was a trial to a jury, with a verdict for the plaintiff. Defendant's motion for a new trial being overruled, the cause is brought to this court on the following assignment of errors: (1) The court erred in admitting over the defendant's objection the testimony of Mrs. Nellie A. Lewis....