23 Kan. 347 | Kan. | 1880
The opinion of the court was delivered by
This was an action brought in the district court of Atchison county, by the defendant in error, as administrator of the estate of Charles W. Henigh, deceased, against the plaintiff in error, to recover the sum of $10,000 damages, alleged to have been sustained by reason of the death of said Charles W. Henigh, an infant of the age of four years eight months and a few days, which death is alleged to have been caused through the negligence of the said plaintiff in error. _ The petition of the plaintiff below defendant in error) sets forth the facts supposed to consti
The various questions now presented to this court were ■raised in the court below by the defendant below (plaintiff in ■error), as follows: By objecting to the plaintiff’s evidence, and to portions thereof; by demurring to the plaintiff’s evi■dence; by excepting to the refusal of the court below to give certain instructions to the jury; by excepting to the refusal •of the court below to submit certain special questions of fact to the jury; by moving for a judgment in favor of the defendant upon the special findings of the jury; and by a motion for a new trial, made upon various grounds. In all •these matters the court below ruled against the defendant, and the defendant took proper exceptions. The principal ■questions involved in this case are as follows:
1. Can an administrator be appointed to prosecute an action under § 422 of the civil code, (Comp. Laws of 1879, p. 656,) where the intestate died without leaving any estate of any hind, and not owing any debts ?
3. Was the plaintiff’s intestate, or the intestate’s father or mother, guilty of any contributory negligence?
We shall not discuss or decide the first question; and as to-the other two, we shall discuss them together, as many of the-facts involved therein are common to both. The facts necessary to be stated in the discussion of these questions are substantially as follows:
For several years prior to the death of said Charles W.. Henigh, the defendant below (the Central Branch Union Pacific railroad company) owned and operated a railroad from Atchison city, westwardly through Atchison and several-other counties in the state of .Kansas. On this railroad, and in Atchison county, the company had a station called Farmington. At this station there was a station-house or depot,, and also a switch-track, owned and used by the railroad company. This switch-track was south of the depot and main track, running nearly parallel with the main track, connecting with the main track at its east end and not at the west end, and was 667 feet in length. The two ends of this switch-track were nearly on the same level or horizontal plane, but the middle was about four feet lower. The steepest grade commenced at a point about 57 feet east of the west end of the switch-track, and ran eastwardly about 280 feet,, and was about 4J feet to said 280 feet, or at the rate of about 80 feet to the mile. Cars were frequently allowed to stand upon this switch-track, and upon this steep grade; but they would not stand upon the steep grade without being properly fastened. They were usually fastened by means of the common hand-brakes attached to the cars. Boys, from ten years-of age upward to sixteen, would sometimes get upon these cars and loosen the brakes, and let the cars run down into the depression of the switch-track; but this was never done with the consent or permission of the railroad company. The railroad company always objected, when the matter came to its knowledge. No public road touched this switch-
These are substantially all the facts constituting, or show
The judgment of the court below will therefore be reversed, and cause remanded with the order that judgment be-rendered in favor of the defendant below for costs.