The Missouri Pacific Railway Company v. Moffatt

• Decision Date: 11 April 1896
• Docket Number: 8334
• Citation: 56 Kan. 667,44 P. 607
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. ELIZA M. MOFFATT et al
• Court: Kansas Supreme Court

44 P. 607

56 Kan. 667

THE MISSOURI PACIFIC RAILWAY COMPANY v. ELIZA M. MOFFATT et al

No. 8334

Supreme Court of Kansas

April 11, 1896

Decided January, 1896.

Error from Wyandotte District Court.

ACTION by Eliza M. Moffatt and others against The Missouri Pacific Railway Company. Judgment for plaintiffs. Defendant brings the case to this court. The opinion herein, filed April 11 1896, states the nature of the action and the material facts.

Judgment reversed and cause remanded.

B. P Waggener, D. Martin, and J. W. Orr, for plaintiff in error.

James F. Mister, J. O. Fife, and Hutchings & Keplinger, for defendants in error.

JOHNSTON J. ALLEN, J., concurring. MARTIN, C. J.

OPINION

JOHNSTON, J.:

On the morning of October 23, 1890, Andrew C. Moffatt was in a wagon driving a team of horses along a highway in Wyandotte county, and, at an intersection of the highway with the Missouri Pacific railway, he was struck and fatally injured by the locomotive of a passenger-train. It was a regular train, which was about on time, running at the usual rate of speed, and the engineer and fireman in charge were in their proper places. They had sounded the whistle for the crossing at a point 80 rods away, and about the same place the bell was rung, but it does not appear that the whistle was again sounded; and although those in charge of the train claim that the bell was rung continuously until the crossing was passed, that is a subject of dispute. The crossing is in a rural district, and west of the railroad -- the direction from which Moffatt was coming -- there is a high hill which obscured the view of the train, and to some extent deadened the noise of its approach and the sound of any warnings that were given. A dense fog prevailed on that morning, and the engineer did not see Moffatt going upon the track until the train was within 50 feet of the crossing; and while those in charge of the train did everything in their power to stop and prevent injury to Moffatt, after they discovered him, he was struck, and within a few hours afterward he died from the resulting injuries. He was a widower, and left six children, whose ages range from 14 to 22 years. This action was brought by the children, who allege that they were living with their father, and were wholly dependent on him for their maintenance and support.

The issues upon the trial were, whether the railway company was guilty of negligence in failing to give sufficient warnings of the approach of the train to the crossing, and whether the deceased was guilty of contributory negligence. The trial was with a jury, which found against the railway company, and awarded damages in favor of the plaintiffs in the sum of $ 8,000.

As Moffatt was a resident of Missouri at the time of his injury and death, the action was properly brought by his children, under section 422a of the civil code. The objections made to the validity of that provision of the code have been held to be unavailing. (Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759.)

An attack was made upon the petition because of the indefiniteness of the averments respecting the negligence of the company. The allegations of the petition are sufficiently specific in stating that the fault of the company was in approaching the crossing with its engine and cars without giving any warning, and without using the bell or blowing the whistle. It contains some averments of a very general nature relating to the dangerous character of the crossing, of running the train at a high rate of speed, and of not using some other and different methods than blowing the whistle or ringing the bell for the protection of those who might be upon the crossing. These general averments are insufficient to justify the admission of proof as to any negligence of the company beyond the failure to give proper signals and due warning of the approach of its train. If other acts of negligence are relied on, they should have been distinctly set forth; and, when the court denied the motion to make the averments more definite and certain, no other proof of negligence should have been received, nor should any other grounds of recovery have been submitted to the jury than those which were properly pleaded. Although there was no averment or proof that the speed of the train was unlawful or negligent, the trial court enlarged the issues, and, by an instruction, submitted to the jury the question of whether the company was guilty of negligence in running the train at a very high rate of speed. The jury responded with a finding that 10 miles an hour was a dangerous speed at such a place and that the railroad company was guilty of negligence by reason of running its train at a very high rate of speed while approaching the crossing. It was a passenger-train, then running at a speed of from 30 to 32 miles an hour, which was the usual speed of that train. The crossing was in an open country, where there was no statutory or municipal regulation with respect to the speed of trains. The demands of the public and the necessities of modern business require that such trains. should be run at a rapid rate, and railroad companies would hardly be justified in slacking the speed at every such highway crossing to avoid the risk of a collision with some one who was passing over the same. Even if the rate of...