The St. Louis & San Francisco Railroad Company v. Blinn

Decision Date15 October 1900
Docket Number520
Citation62 P. 427,10 Kan.App. 468
CourtKansas Court of Appeals
PartiesTHE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. SAMUEL BLINN, as Administrator

Decided October, 1900.

Error from Wilson district court; L. STILLWELL, judge.

Judgment of district court reversed.

SYLLABUS

1. NEGLIGENCE -- Allegations of Petition -- Instructions. An instruction which authorized the jury to find for the plaintiff upon a ground of negligence not alleged in the petition held erroneous.

2. -- Value of Life -- Evidence -- Nominal Damages. In the absence of evidence tending to show the pecuniary value of a life terminated by the negligent act of another, and in the absence of proven facts which might furnish the elements entering into a just estimate of the pecuniary value of the life so lost, a verdict in favor of the administrator of the estate of the deceased person for more than nominal damages cannot be sustained.

J. W Gleed, and John L. Hunt, for plaintiff in error.

T. J. Hudson, and Willets & Cooper, for defendant in error.

OPINION

MILTON, J.:

This action was brought by Samuel Blinn, as administrator of the estate of his deceased wife, Annette D. Blinn, who was killed at a highway crossing on the line of the St. Louis & San Francisco railroad, near the village of New Albany, Wilson county, on January 27, 1897. She was walking alone towards the north on the public highway which extended north from a point near her residence, and was struck by a passenger engine attached to a train of cars and operated by the defendant company, at about two o'clock P. M. on the day named. The petition asked for damages in the sum of $ 10,000, and alleged that the action was brought for the benefit of the five children of the deceased. The jury returned a verdict in favor of the plaintiff below in the sum of $ 1000, and judgment was entered accordingly. The allegation of the amended petition charging negligence of the defendant is as follows:

"That as the deceased, Annette D. Blinn, had reached the crossing aforesaid and was in the act of crossing said railroad, the defendant carelessly and negligently caused one of its locomotives with a train of passenger-coaches and other cars attached thereto to approach said crossing from the east and then and there pass rapidly over said railroad, and negligently and carelessly omitted its duty while approaching said crossing to give signals of the approach of said train by ringing a bell or sounding a whistle; that in consequence thereof the locomotive and cars struck her, the said Annette D. Blinn, with great violence and threw her out and upon the ground with such force as to cause the death of her, the said Annette D. Blinn, immediately, or in a very short space of time, not to exceed five minutes."

The petition also alleged a large amount of evidentiary matter, part of which was to the effect that a hedge fence was growing and standing on the east side of the highway over which the deceased was traveling toward the crossing, and that such fence extended to within a few feet of the railroad-track. It was further alleged that the train which struck and killed the deceased was running at a rate of about sixty miles an hour. The plaintiff moved to strike out these allegations of evidentiary matter, but the motion was overruled. The answer contained a general denial and a plea of contributory negligence. The evidence as to the alleged negligence of the defendant in failing to sound the whistle when approaching the crossing where Mrs. Blinn was killed was very conflicting. Evidence concerning the dangerous character of the crossing for one approaching from the south, on account of the fences, and the grass and weeds on the right of way east of the fence, was received without objection by the defendant. The court gave, among others, the following instruction:

"7. With reference to the alleged hedge fence on defendant's right of way, you are instructed as follows: If you should believe from the evidence that the defendant unnecessarily and negligently permitted a hedge fence to remain standing on its right of way, that said fence was of...

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