Dulaney v. Missouri Pacific Railway Co.

Ellison, J. — This action was begun in the Moberly court of common pleas, and by change of venue was transferred to the circuit court of Pettis county. It is brought by plaintiffs as- mother and father of Keene Dulaney, who was killed while in defendant’s employ. He was between seventeen and eighteen years of age, and was engaged as brakemen in switching cars in the city of Sedalia. There were five cars being switched onto a “Y.” In the second car back of the engine, which was a flat car, there were several large spikes which seem to have been driven up through the bottom of the car, and were sticking above the surface of the floor. These spikes are charged to have been the cause of the deceased falling from the train, and defendant is charged with negligence in permitting them to be in the car. The verdict was for plaintiffs, and defendant appeals. At the close of plaintiffs’ testimony, defendant asked an instruction in the nature of a demurrer to the evidence, which being refused, it afterwards interposed a motion in arrest, which was likewise overruled. The petition, while stating that the deceased was the minor son of plaintiffs, past seventeen years old, fails to allege that he was unmarried, and for this reason the motion in arrest should have been sustained, as without such averment there was no cause of action alleged. The right of action given by sections 2121 and 2122, Revised Statutes is statutory. It did not exist at common law. Being created by the statute, one who sues must bring himself within the statutory terms. McNamara v. Slavens, 76 Mo. 329. The right of action in this case only belongs to the father and mother in the event that [600] there is no wife. The language of the statute is “if such deceased he a minor and unmarried, then the action enures to the father and mother. The principle announced in Barker v. Railroad, Supreme Court of Missouri, not yet reported, fully sustains this view. The judgment is reversed and the cause remanded. .All concur.