Morris v. The Kansas City

• Decision Date: 09 May 1925
• Docket Number: 25,657
• Citation: 118 Kan. 433,235 P. 1047
• Court: Kansas Supreme Court
• Parties: CORA MORRIS, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant (ED STUDT, Defendant)

235 P. 1047

118 Kan. 433

CORA MORRIS, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant (ED STUDT, Defendant)

No. 25,657

Supreme Court of Kansas

May 9, 1925

Decided January, 1925.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Indefinite Petition--Waiver of Defect. Where a demurrer to a defective petition is overruled and no appeal is taken therefrom and the petition is indefinite and uncertain in several particulars which could have been corrected in response to a motion to make more definite and certain if one had been filed, it is not error to overrule an objection to the introduction of evidence to prove particular allegations of the petition, nor to overrule a demurrer to the evidence of the plaintiff, if the petition states a cause of action and there is evidence which tends to prove all the necessary elements of that cause of action.

2. NEGLIGENCE--Contributory Negligence--Special Findings. The defendant railway company was not entitled to judgment on the special findings of the jury.

3. SAME--Contributory Negligence--Street Railway Crossing. The deceased, who was killed while attempting to cross street railway tracks, was not guilty of such contributory negligence, as a matter of law, as prevents a recovery for his wrongful death.

4. MASTER AND SERVANT--Injury to Third Person--Nature of Master's Liability. In an action against a street railway company and the motorman operating one of its cars for the wrongful death of a person attempting to cross the railway company's tracks, the company is not excused from liability by a verdict in favor of the motorman where there is evidence which tends to show that the death was caused by defective brakes on the car.

McCabe Moore, of Kansas City, H. M. Langworthy, and Frank H. Terrell, both of Kansas City, Mo., for the appellant.

David F. Carson, of Kansas City, and Carlos W. Evans, of Kansas City, Mo., for the appellee.

OPINION

MARSHALL, J.:

This action was brought to recover damages for the wrongful death of W. A. Morris, the plaintiff's husband, who was killed when the automobile he was driving was struck by an interurban car operated by defendant Studt as motorman but belonging to the defendant railway company. A verdict was returned for the defendant Studt, but against the defendant railway company. Judgment was rendered accordingly, and the defendant railway company appeals.

1. Under one head, the defendant railway company contends:

"The court committed error in overruling appellant's objection to the introduction of any evidence under the petition of appellee on the ground that said petition did not state a cause of action against appellant.

"The court committed error in overruling appellant's objection to the introduction of certain testimony of appellee and daughter of appellee.

"The court committed error in overruling defendant's demurrer to appellee's evidence."

The railway company had filed a demurrer to the petition, which had been overruled before the trial began, from which no appeal was taken.

To support its contentions, the railway company argues that the plaintiff was not the proper party to maintain the action; that the petition should have alleged that W. A. Morris was, at the time of his death a resident of Kansas; and that evidence should have been introduced to prove that allegation. The argument to show that the plaintiff was not the proper party to maintain the action is based on section 60-3204 of the Revised Statutes, which reads:

"That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section [by the wrongful act or omission of another] is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased."

The petition alleged that the plaintiff was the next of kin of W. A. Morris and that there had been no administration upon his estate. The plaintiff testified that she was the widow of W. A. Morris and that there had been no administration of the estate. The evidence showed that one of the witnesses on the trial was the child of W. A. Morris.

It is argued that if a widow prosecutes an action for the wrongful death of her husband in Kansas, she should allege: "(1) Whether or not the deceased left any children who would take a share of the amount that may be recovered; (2) whether or not she sues as an individual or in a representative capacity."

The petition was attacked by demurrer, not by motion to make more definite and certain, and was held sufficient as against that demurrer. If the defendant had desired, the petition could have been made more definite and certain by setting out the facts which, it is now claimed, ought to have been alleged. If the petition was defective, the railway company had knowledge thereof at the time it went to trial. If it had desired that the petition be put in proper form, a request to that effect should have been made. Since such request was not made, the railway company cannot now be heard to say that it was prejudiced by the indefiniteness of the petition. Under these circumstances, it did not matter to the railway company whether the action was prosecuted by the widow, by the next of kin, or by the administrator. There was but one cause of action, and that cause of action was tried under pleadings which the railway company chose to permit to stand without objection other than by demurrer.

The evidence complained of was that which was introduced to establish the cause of action that was being tried. If it were necessary, the pleadings would be considered as amended to correspond to the facts established by the evidence. There was evidence which tended to prove all the facts necessary for the plaintiff to establish to enable her to recover.

To reverse the judgment on either of these grounds would be to violate section 60-3317 of the Revised Statutes, which directs this court to disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice had been done by the order of the trial court.

2. The railway company says that "the court committed reversible error in overruling defendant's motion for judgment upon the special findings of the jury." The findings of the jury were as follows:

"1. When Mr. Morris was driving an automobile north on Twenty-second street in Kansas City, Kan., at the time referred to in plaintiff's petition, and reached a point about thirty (30) yards south of the railroad track of The Kansas City, Leavenworth & Western Railway Company, which crosses said Twenty-second street, was there anything to prevent him, if he looked eastward, from seeing an electric car on said railroad track at any place west of said crossing for a distance of at least fifty (50) yards? A. No.

"2. If you answer the above question in the affirmative, then state what it was that obstructed the view. A. Nothing.

"3. When Mr. Morris was driving an automobile north on Twenty-second street in Kansas City, Kan., at the time referred to in plaintiff's petition and reached a point about thirty (30) or forty (40) feet south of the railroad track of the Kansas City, Leavenworth &amp Western Railway Company which crosses said street, was there anything to prevent him, if he looked eastward, from seeing an electric car on said railroad track at any place east of said Twenty-second street for a distance of, at least, two hundred (200) feet? A. We believe not.

"4. If you answer the last question in the affirmative, then state what it was that obstructed such view. A. A hill.

"5. Is not the view of a person on Twenty-second street in Kansas City, Kan., looking eastward from any point toward defendant's right of way not exceeding thirty yards south of the railroad crossing the same now as it was when Mr. Morris was killed, with reference to the visibility of one of defendant's cars upon its tracks? A. No.

"6. At what rate of speed was Mr. Morris driving his automobile when he was about thirty (30)...