167 Mo. App. 404 | Mo. Ct. App. | 1912
Plaintiff commenced this suit in the circuit court of Jackson county to recover damages for the death of her husband which she alleges was caused by negligence of defendant. '
The cause of action, if one exists, arose in Kam sas and the petition pleads statutes of that State which, in certain instances, give to the widow of one whose death is caused by the negligence of another the right to maintain an action in damages. [Secs. 5319, 5320, Dassler’s Gen. Stat. of Kansas, 1905.] Facts
There is strong evidence introduced by plaintiff which tends to show that the railway tracks from Sixth street southeastwardly had became a highway 'for pedestrians and that such user had been so general and continuous that defendant must be held .to have had knowledge of it and to have acquiesced in .it. The husband of plaintiff used this pathway. He ■approached the trestle bridge from the southeast along
The first question we shall consider is that of the sufficiency of the facts we have stated to support the charge that the death of plaintiff’s husband was caused by negligence of defendant in failing to discharge a humanitarian duty it owed him. That the deceased was guilty of negligence that brought him into a perilous situation is a proposition that cannot be and is not disputed. If before going on to the bridge he had but lifted his eyes he would have seen the car approaching and would have realized that he could not cross the bridge in safety on the west track.- And even after he was on the bridge he still could have escaped had he exercised reasonable care, either by turning hack or by crossing over to the east track. The car was not coming’ fast and its headlight illuminated the track. He was a vigorous man in the possession of unimpaired faculties, and the only reasonable explanation that may be given of his conduct in allowing the car to run him down is that he was walking, as plaintiff’s witnesses say, with his attention diverted from the oncoming car and apparently riveted on the
It does not follow from the mere fact that a traveler is on the track in a dangerous place that the engineer or motorman must see him at the first moment and hasten to stop the engine or car, or give warning signals. An engineer or motorman is required to
It is argued by counsel for defendant that the petition is fatally defective and will not support the judgment for the reason that it fails to allege facts showing that plaintiff had a cause of action under the laws of Kansas for the death of her husband. This insufficiency of the petition was allowed to go unchallenged by defendant until the motion in arrest, and the question- we must decide is whether or not the defect is one that cannot be cured by verdict.
Defendant is right in the contention that plaintiff could have no cause of action in this State if she had
The humanitarian rule is a common law not a , statutory rule- and in the absence of proof to the contrary the presumption would be indulged that it is recognized in the jurisprudence of a common law State and in an action prosecuted in our courts to enforce a cause which originated in a common law State it would not be necessary to pléad and prove that the humanitarian rule obtains in such State since we would assume until it otherwise appeared that the general jurisprudence of a sister State having the common law is the same as our own. The territory of .which the State of Kansas is a part never was subject to Great Britain but was a French possession at the time of its purchase by .the United States. It was a stranger to the common law and no presumption can be indulged that its fundamental jurisprudence is the same as our own. Consequently the burden devolved on the plaintiff whose cause depends on a common law rule to plead and prove that such rule belonged to the jurisprudence of the State of Kansas and the omission of such averment from the petition made it vulnerable to attack by demurrer. [Mathieson v. Railroad, 219 Mo. 542.] But in a number of cases the Supreme .Court hold that
Though we cannot -presume that the common law was adopted in Kansas we will presume, in the state of the pleadings before us, that the laws of that State are similar to our own laws, and that the humanitarian rtlle is recognized and applied there as it is here. [Lee v. Railway, supra, 1. c. 415 ; Burdict v. Railway, 123 Mo. 221; State v. Clay, 100 Mo. 571; Coleman v. Lucksinger, 224 Mo. 1; Biggie v. Railroad, 159 Mo. App. 350.]
The demurrer to the evidence was properly overruled. In what we have said we have answered the other points made by counsel for appellant in their brief. The action was fairly tried and the judgment is affirmed.