262 Mo. 25 | Mo. | 1914
Plaintiff, as administrator of the estate of James E. Reilly, deceased, brought suit against defendant, a railway company, in the circuit, court of Howard county, under section 5426, Revised Statutes 1909, for $10,000 damages for the death of said Reilly through the alleged negligence of the defendant. Upon a trial a verdict and judgment was rendered in favor of plaintiff in the sum of $8000, from which defendant appeals.
James B. Reilly, at the time of the accident and for three years prior thereto, had been employed by defendant as a railway brakeman on one of its trains running from Hannibal to New Franklin. On the night
Defendant’s track on the platform opposite the coal chutes was about fourteen feet above the level of the ground; the level portion of same, about 200 feet long, was reached by a switch track laid on an incline formed of trestle work; at the north end of the platform were six coal chutes; these chutes extended above the elevated track eight feet, and each was provided with a trap door to load coal into tenders of engines on the main line; the back of the chutes presented a solid wooden wall adjacent to the back of the platform or elevated track. The height of the wall above the platform was something more than six feet; the track on this platform was parallel with the wall, the nearest rail of same being about thirty-seven inches from the wall; the distance from the outer edge or side of a car when on this elevated track, to the face of the wall, was seven inches. On the opposite side of the track from the wall the body of a car, when on the elevated track, extended over the full width of the platform; the cars were provided with automatic couplers, and when the engine backed up to the first car, as directed by Reilly, it coupled without difficulty, but the coupler failed to work on the second car, and Reilly went over or through the cars, evidently open coal cars, and got down between them to open the. coupler. This he did, and instead of climbing into the car and signaling the engineer to move the engine, he stepped out,, between the track and the wall of the chute, and signaled the engineer with his lantern, and the latter responding thereto moved the cars with the result above stated.
The petition summarized is as follows:
riaintiff alleges his appointment as administrator of the estate of James E. Reilly and that he brings this suit as such; that deceased was an unmarried man, twenty-two years of age, who left surviving him no wife or minor child or children, but a father, mother and brothers and sister, as his next of kin; that at the station of Wilcox on defendant’s line of railway it had constructed an elevated track reached by inclined trestle work, and had built thereon a platform elevated about fourteen feet above the surface of the ground, over and upon which cars were moved by defendant for the transfer of coal from the cars into coal chutes; that said platform was built along the back of the chutes; that the back of the chutes extended, about eight feet above the elevated track and platform and was solidly boarded up, forming a dead wall for a length of about forty feet; that the intervening space between the back of the chutes and the- sides of cars standing on the tracks opposite thereto, was not sufficiently wide to afford employees a safe place to work while engaged in coupling and uncoupling cars on said elevated track; that defendant had negligently failed to construct and maintain a platform, walk-way or passage on the side of said elevated platform opposite said wall upon which defendant’s employees might stand in safety when coupling or uncoupling cars on said elevated track, and
Defendant demurred to the petition' on the ground that it failed to state facts sufficient to constitute a cause of action; that it affirmatively appeared on the face of the petition that deceased was guilty of contributory negligence; that he had full knowledge of the conditions and dangers incident to his employment, which were open, obvious and apparent to him, and that he had assumed the risk of any injury sustained. This demurrer was overruled, and defendant answered
The defendant assigns error in the overruling of its. demurrer to plaintiff’s petition, in the court’s refusal to give an instruction in the nature of a demurrer to the evidence; that the finding of the jury is against the evidence and the’ admitted physical fact that de
The next of kin, to-wit, the father, mother, brothers and sister of deceased are named in the petition, but aside from a general allegation of damages in the prayer, there is in the pleading no reference to injury suffered by anyone as a result of the death of decedent. The court could not, of course, be guided by the prayer in determining the nature of the relief sought. [State ex rel. v. Barnett, 245 Mo. 99.]
As an elementary proposition in measuring the sufficiency of a petition of. the character of the one under consideration, it may be stated generally, proper regard being had for the statute upon which the action is based, that the same rules of pleading are applicable as in an action for personal injury.
The right of action being statutory (Casey v. St. L. Tr. Co., 205 Mo. 721, 724; Id., 116 Mo. App. 235), the allegations of the petition should be sufficiently full and definite to bring the cause clearly within the purview of the statute, in conformity with the general rule that an action based upon a statute should charge such facts as will bring it within the terms of the act creating it. [Williams v. Railroad, 233 Mo. 666, 681; Gilkeson v. Railroad, 222 Mo. l. c. 183.]
While no greater certainty is required in the pleading than is found in the statute itself, at least those
However, except to determine whether the petition states a cause of action under any circumstances, the question of nominal damages is not involved in this case. Keeping in mind the general observations heretofore made in regard to the sufficiency of,a petition of the character of the one at bar, notwithstanding this suit is brought by the personal representative, it ber comes necessary for us to determine whether the following material facts have been properly pleaded: (1) the existence of beneficiaries such as “are entitled to sue” within the contemplation of the statute (Sec. 5427, supra), and (2) the personal injury suffered by such beneficiaries from the death of the decedent through the alleged wrongful act of the defendant.
Under the terms of the statute the verdict of the jury is to be determined by “reference to the necessary injury resulting from the death to the surviving parties who may be entitled to sue.”
The correctness of the conclusion reached in the Hegberg and Johnson cases, supra, is not questioned, that where suit is brought by a- personal representative, as here, he sues under the statute as a trustee of an express trust for such existing beneficiaries as are
But it is not necessary that such beneficiaries should be named other than to indicate their relationship to the deceased. [Conant v. Griffin, 48 Ill. 410; Pennsylvania Co. v. Coyer, 163 Ind. 631; Howard v. Del. & H. Canal Co., 40 Fed. 195, 6 L. R. A. 75.]
We find that the petition in the instant case alleges that “deceased was an unmarried man . . . who left surviving him a father, mother, brothers and sister as his next of kin.” This is a sufficient allegation as to the existence of beneficiaries and in this respect the petition is not subject to objection.
In many cases based on statute similar to the one under consideration, it is held that a distinction is to be drawn between actions on behalf of beneficiaries so related to the deceased that the law imposed upon him, while living, the duty of their support, and those actions in which the beneficiaries were not so related; it being held in regard to the first class that it is enough if the petition shows the existence of such beneficiaries, the pecuniary loss or injury being thereby sufficiently averred (Peden v. Am. Br. Co., 120 Fed. 523; Kearney Elec. Co. v. Laughlin, 45 Neb. 390; City of Friend v. Burleigh, 53 Neb. 674); but in the second class it is necessary that the petition allege facts showing an actual pecuniary interest in the life of the decedent and a consequent loss by reason of his death. [Thompson v. Railroad, 104 Fed. 845; Greenwood v. King, 82 Neb. 17; Orgall v. C. B. & Q. Ry. Co., 46 Neb. 4.] No such distinction obtains here and in view of the plain and unequivocal terms of the statute we are of the opinion that the petition should allege the loss sustained by the beneficiaries by reason of the death of the decedent regardless of the degree of their relationship to him. [Rouse v. Electric Ry., 128 Mich. 149, 155; Regan v. Railroad, 51 Wis. 599, 602.] Lacking this essential averment the petition does not state a cause of action for substantial damages and this will suffice to determine the issue adversely to the plaintiff, unless, upon an examination of the facts, it is disclosed
The books afford few parallels to this reckless disregard of one’s own safety. We cannot characterize decedent’s conduct other than that of contributory negligence. Fully aware of the conditions and dangers incident to his employment, which were not obscure but were open, obvious and apparent, he knowingly put himself in a place of peril and it must be held that he assumed the risk of the injury sustained. There are, therefore, no facts upon which a finding for even nominal damages can be sustained, and the judgment of the trial court is reversed.