The Union Pacific Railway Company v. Sternberger

• Citation: 54 P. 1101,8 Kan.App. 131
• Decision Date: 01 November 1898
• Docket Number: 412
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. THOMAS J. STERNBERGER, as Administrator of the estate of Charles W. Brown, deceased
• Court: Court of Appeals of Kansas

54 P. 1101

8 Kan.App. 131

THE UNION PACIFIC RAILWAY COMPANY v. THOMAS J. STERNBERGER, as Administrator of the estate of Charles W. Brown, deceased

No. 412

Court of Appeals of Kansas, Northern Department

November 1, 1898

Opinion Filed November 12, 1898.

Error from Douglas district court; A. W. BENSON, judge. Affirmed.

Judgment affirmed.

A. L Williams, N. H. Loomis, and R. W. Blair, for plaintiff in error.

W. W Nevison, and John M. Barker, for defendant in error.

OPINION

MAHAN, P. J.:

This action was begun by the defendant in error, as administrator of the estate of Charles W. Brown, deceased, against the plaintiff in error, under section 418 of the code, to recover damages on account of the death of Brown, which it was alleged was occasioned by the wrongful acts or omissions of the plaintiff in error. Brown was a brakeman on a freight-train of the plaintiff in error on the 2d day of September, 1887. The train was loaded with coal at Lansing, on the Leavenworth branch, and was being taken thence to Wamego. The train ran through the switch at the Lawrence junction and was thereby derailed, the train wrecked, the engineer, fireman and the brakeman Brown killed. There was a trial to a jury, which resulted in a verdict for the plaintiff in the sum of $ 1500. There had been a former trial in which the plaintiff recovered $ 3000. This judgment was reversed by the supreme court (U. P. Rly. Co. v. Sternberger, 54 Kan. 410, 38 P. 486) because the special findings of the jury were not sustained by the evidence and were inconsistent with one another. The supreme court, in that case, indulged in some comments unfavorable to the verdict, to the effect that it was excessive, but did not base the judgment of reversal thereon, saying that by reason of the other errors it was not necessary to do so.

There are sixteen assignments of error presented for consideration. The first thirteen assignments are based on the action of the trial court in admitting or excluding evidence. We do not deem it necessary to refer specifically to the first six assignments. No substantial error was committed by the court in its action in the matters referred to therein. All of the testimony objected to had relation to the conduct of the deceased toward his wife and minor son. It was competent for the purpose of showing the relations between the deceased and his family, as bearing on the question of pecuniary injury suffered by them in the death of the husband and father. The court did not abuse its discretion in any particular therein, nor was the secondary evidence complained of permitted to be introduced without proper foundation.

The seventh assignment of error is based on the exclusion by the court of what is designated as the sworn statement of Mrs. C W. Brown, the widow, for whose benefit the recovery was sought in the first place, together with her minor son, Charles F. Brown. It is contended that this statement was admissible under the exception to the rule of law excluding hearsay, which admits the statements of deceased persons made against their interest, and which are offered in evidence after the death of the witness. Had the paper been, strictly speaking, such a statement, it would have been competent evidence, and it would have been error to reject it, as was decided by the supreme court in the case of Walker v. Brantner, 59 Kan. 117, 52 P. 80. The statement was offered as an entirety and excluded as an entirety. Much of it was immaterial and did not come within the rule contended for in that respect. Some parts of the writing were statements against interest, or might have been called statements against interest, had they been made in the ordinary course, but they were not. It was an attempt on the part of the defendant, plaintiff in error, to introduce the deposition of Mrs....