Atchison, Topeka & Santa Fé Railroad v. Weber

The opinion of the court was delivered by JOHNSTON, J.: The plaintiff, who is the personal representative and brother of Philip Weber, deceased, brought this action in the district court of Atchison county, in behalf of the next of kin, to recover the damages suffered by them in the death of Philip Weber, caused, as plaintiff alleges, by the wrongful act and neglect of the railroad company. The verdict and judgment were in favor of the plaintiff, and the defendant comes here assigning error on several exceptions that were taken during the trial. It is first contended that the court erred in overruling the motion of defendant for judgment in its favor on the special findings returned by the jury. Upon the trial of the cause the defendant sought to show, among other things, that for several years prior to his death, Philip Weber lived a reckless and dissipated life, and that by reason of the excessive use of intoxicating liquors and other causes, his condition at the time of the alleged injury was such that his survivors suffered no pecuniary loss in his death. The jury, in answer to special — 551 — •questions submitted to them, found, as will be seen, that none of his next of kin depended upon him for support; that his life was of no pecuniary value to them, and that they sustained no loss by his death. The claim of counsel for the defendant is, that notwithstanding the death of Weber may have been caused by the wrongful act or omission of the railroad company, yet as there was no actual damage or pecuniary loss sustained by his next of kin, not even nominal damages can be recovered. In this we think counsel are mistaken. The deceased was entitled to his life, and presumably the next of kin had some interest in his existence. A right of action is expressly given by the statute in behalf of the next of kin where the death of one is caused by the wrongful act or omission of another; provided the deceased, if he had lived, might have maintained an action for the injury caused by the same wrongful act or omission. The law infers an injury whenever a legal right has been violated, and every injury imports a damage. As a general rule, where the law gives an action for a wrongful act, the doing of the act itself imports a damage, and even if no actual pecuniary damage may have been shown or suffered, still the legal implication of damage follows the wrongful act, and nominal damages at least may be recovered. Some of the English courts have held that if no actual loss is shown, nominal damages are not recoverable; but the American courts, so far as our observation goes, uniformly hold, under statutes similar to our own, that where a person has met with death caused by the wrongful act, neglect or default of another, whenever there are next of kin, nominal damages at least may be recovered. (Lehman v. City of Brooklyn, 29 Barb. 234; Dickens v. Railroad Co., 1 Abb. Ct. App. 504; Quin v. Moore, 15 N. Y. 432; Ihl v. Forty-second Street &c. Rld. Co., 47 id. 317; Chicago & Alton Rld. Co. v. Shannon, 43 Ill. 338; C. & N. W. Rld. Co. v. Swett, 45 id. 197; City of Chicago v. Scholten, 75 id. 468; Thompson on Negligence, 1293.) The further point is made by counsel for the railroad company, that the findings and verdict of the jury are not sustained — 552 — by the evidence. In response to special questions submitted by the court, the following findings of fact were returned by the jury: “Was he so removed by and under the direction of one of the police officers of the city of Newton? Answer: No. “Did the city marshal of the city of Newton ascertain that said Philip Weber was at defendant’s station, and did said marshal take charge and control of him immediately after his removal from said car? A. After said Philip Weber had lain on the stone steps of the platform for over one hour in an unconscious state, then the city marshal took charge of said Philip Weber. “ Did the city marshal of Newton have charge of said Philip Weber from the time he was removed from said car until about two o’clock p. m. of November 1st, 1881, when he was removed to the Howard house? A. After the expiration of one hour or over. “Is it not a fact that when"the conductor had Weber removed from the train at Newton he placed him in charge of one of the policemen of said city, and told him to do everything he could for him, as he was in such condition that he could not take him on the train? A. No. “Is it not a fact that Weber was turned over to the city marshal and overseer of the poor at Newton before the train left the depot in that place? A. He was not. “Did Weber contract any disease or sustain any injury during the time after he was taken from the car and before he was placed under the charge of the city marshal, and if so, how much, and to what extent? A'. Sustained an injury which resulted in his death.” In these findings the jury seem to have either mistaken or purposely disregarded the testimony upon the facts inquired about. The testimony is, that upon the arrival'of the train at Newton, a special policeman of that city, who was doing duty at the station of the railroad company, with the assistance of others removed Weber, who was then in an unconscious state, from the train. The train remained at the station about ten minutes. Within a few minutes after he was removed, and within ten minutes after the arrival of the train and before its departure, Weber was turned over to and placed in charge of the city marshal and overseer of the poor. Henry Meyer, who — 553 — was the overseer of the poor, says that he took charge of him. within from eight to ten minutes after the train came in, and immediately sent for a physician, and made effort to find a hotel or boarding house where he could be received and cared for. This is' in effect the testimony of several other witnesses-who were there present, and in an examination of all the testimony in the record nothing is found contradicting it-; Most of these findings are therefore untrue. Their materiality, when the issues and facts of the case are considered, will not be questioned. When Weber was placed upon the train at Hutchinson, his condition was unknown to the employés of the company in charge of the train. He had been in Hutchinson since the day before, suffering from the effects of the excessive use of intoxicating liquors.' He was found by the officers of that city lying on one of the streets in a spasm, and as they state, apparently afflicted with delirium tremens. Shortly after he was placed upon defendant’s train at Hutchinson, he was seized with a fit and fell from his seat upon the floor, where he struggled for some time. While going from Hutchinson to Newton, a distance of thirty-three miles, he had several such attacks. When he was out of these spasms he appeared to be somewhat delirious, and the conductor states that he tried to jump off of the train. In the car he removed his shoes, complaining that they were full of bugs and worms, and conducted himself in such a way as to annoy and frighten his fellow-passengers, so that a number of them left the car and went to other portions of the train. When the train reached Newton he had fallen from his seat, and was lying in the aisle of the coach in an unconscious condition. It is clear that the conduct of the deceased justified the railroad company in removing him from its train. It is the duty of a railway company carrying passengers, to-provide for their quiet and comfort, and secure them against the annoying and offensive conduct of other passengers; and where the conduct of a passenger is such as to render his presence dangerous to fellow-passengers, and such as- will occasion them serious annoyance and discomfort, it is not only the right — 554 — but the duty of a railroad company to exclude such passenger from its train. (Vinton v. Middlesex Rld. Co., 11 Allen, 304; Commonwealth v. Power, 7 Metcalf, 596; Jencks v. Colman, 2 Sumner, 221; Lemont v. Washington & Georgetown Rld. Co., 1 Am. & Eng. Rld. Cases, 263; Brown v. Memphis & Charlestown Rld. Co., 5 Fed. Rep. 499; Brown v. Memphis & Charlestown, Rld. Co., 1 Am. & Eng. Rld. Cases, 247; Railroad Co. v. Statham, 42 Miss. 607.) And under the authorities, it seems that it is equally the duty of the railroad company to remove from the train and leave an unattended passenger, who, after entering upon a journey, becomes sick and unconscious or insane, until he is in a fit condition to resume his journey, or until he shall obtain the proper assistance to take care of him to the end of his journey. In this case, considerations for the fellow-passengers, as well as for the health and comfort of Weber himself, required that the railroad company take him from the train. In regard to Weber’s condition with respect to completing his journey, the jury made the following findings: “Was he in a fit condition to travel on defendant’s train without injuring himself? A. Think not. “Was not Philip Weber, at the time he was removed from the train at .Newton, in such a condition as to render it unsafe for him to continue his journey to Atchison, Kansas, without medical treatment, or anyone to care for him? A. We think it was. “Could not Philip Weber l’eceive better care from the city authoi’ities of the city of Newton than it was possible for the defendant’s employés to give him on the train? A. Yes.” Under these facts, the propriety of his removal cannot be doubted. The duty of the railroad company, however, with respect to Weber, did not end with his removal from the train. He was unconscious, and unable to take care of himself. The company could not leave him upon the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort. As was said by the learned court who tried the cause: “ Of course the carrier is not required — 555 — to. keep hospitals or nurses for sick or insane- passengers, but when a passenger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity toward him until some suitable provision may be made.” The contention of the railroad company is, that it performed its duty to this passenger when, after taking him from the train, it turned him over to the authorities of a city having four thousand inhabitants, and well supplied with public houses, and especially when it placed him in charge of the overseer of the poor. The statute makes it the duty of an overseer of the poor of any township or city to grant temporary relief to any non-resident who may be found lying sick therein, or in distress, and without friends or money, and the expense of providing such relief is to be paid out of the county treasury. (Comm’rs of Pottawatomie Co. v. Morrall, 19 Kas. 141.) This was the condition of 'Weber; he was in distress, sick, and without friends or money. It became the duty of the overseer, when his attention was properly called to Weber’s condition, to take charge of him, and make provision for his temporary relief. We think that if the railway company carefully and prudently removed him from the train, and promptly placed him in the care of the overseer of the poor, who received and took charge of him, that under the facts of this case it has exercised that reasonable care and diligence in making provision for him that the law requires. And here the materiality of the findings in question arises. The jury found that he lay on the platform of the company’s depot in an exposed condition for over an hour before he was taken charge of by the overseer of the poor, and that during that time he sustained such injuries as resulted in his death; while, as we have seen, the testimony is that he was placed in •charge of the overseer within a few minutes after he was removed from the train. We do not assume to decide whether -or not Weber sustained any injury from exposure during the brief time that elapsed after he was removed from the train and before he was taken in charge by the city authorities, nor — 556 — whether the railroad company during that time exercised due care toward him, and due diligence in providing for his safety and comfort. But as it appears that these important findings, upon which the general verdict of the jury may have been mainly founded, are untrue, and inasmuch as the jury-allowed more than npminal damages, notwithstanding a special finding that the next of kin. sustained no pecuniary loss by the death of plaintiff’s intestate, the verdict cannot be permitted to stand. There are other assignments of error, but in view of the conclusion that has been reached, we do not deem it necessary to notice them. . The judgment of the district court will be reversed, and the cause remanded for a new trial. All the Justices concurring.