St. Louis & San Francisco Railway Co. v. French

[588] The opinion of the court was delivered by Martin, C. J. : I. The petition was good as against a demurrer, but the charge of negligence was vague and general, and the motion to make more definite and certain ought to have been sustained. (Civil Code, § 119 ; H. & St. J. Rld. Co. v. Fox, 31 Kan. 586, 590 ; Mo. Pac. Rly. Co. v. Merrill, 40 id. 404, 406 ; A. T. & S. F. Rld. Co. v. O’Neill, 49 id. 367, 385.) We think, however, that the error was not prejudicial to the defendant below, for the following reasons : The casualty occurred at midday, in the presence of several persons, and his fellow employees knew that French was killed by falling off the pilot and being run over by the cars, and before the trial of the case all the evidence offered on the part of the plaintiff relating to the occurrence was taken by deposition, and thus the defendant below had much better knowledge of the facts relied on by the plaintiff below than the court could have required to be set forth in any petition. Mo. Pac. Rly. Co. v. Merrill, supra, was an action for damages by fire. The charge of negligence was general, and the railway company asked that it be made more definite and certain by stating whether, a freight- or passenger-train was charged with setting out the fire, and whether it was running east or west, and this court was of opinion that the motion should have been sustained ; but in the opinion the court says (p. 406) : “The record discloses, however, that no prejudice resulted to the company from the ruling made. Some of the servants of the company were present when the fire escaped, and assisted in putting it out, and one of them reported to the company the cause and the extent of the injury. They had the same information as to which locomotive and train were passing [589] as Merrill liad, and therefore the company suffered no inconvenience in this instance from the indefinite - ness of the petition. As the court is invested with considerable discretion in passing on motions of this kind, and as no prejudice resulted to the company, the ruling of the court cannot be regarded as reversible error.” II. The defendant below filed motions to suppress the depositions of several witnesses, mainly on the ground that they were not properly entitled in this action. They were taken without formal notice, but upon stipulations signed by counsel for the parties, and these were entitled, “Anna French, plaintiff, v. The St. Louis & San Francisco Railway Company, defendant,” and the title was so indorsed on the envelopes in which the depositions were transmitted. Counsel for the railway company say that they stipulated for taking depositions in a case in which Anna French was plaintiff in her individual capacity, and that they were used in a case wherein she sued as administratrix of the estate of Frank French, deceased. There is no suggestion, however, that Anna French ever brought suit in said district court against the defendant below in her individual capacity, and this could have been easily shown, if true. Counsel for the defendant below appeared on the taking of the depositions and fully examined the witnesses, and could not have been misled as to the case in which the depositions were to be used, and this defect .is therefore of little consequence and should be disregarded. (Civil Code, § 140 ; Laithe v. McDonald, 7 Kan. 254; Whitaker v. Voorhees, 38 id. 71; Babb v. Aldrich, 45 id. 218.) III. The plaintiff in error claims that no negligence was shown on its part, and that the death of' Frank French was the result of his own negligence, or was [590] accidental, and, among others, the case of McDermott v. A. T. & S. F. Rld. Co., ante, p. 319, 43 Pac. Rep. 248, is cited as applicable. There are some points of similarity between this case and that. In each a brakeman was killed while making a flying switch, by falling on the track and being run over by the cars. But in that case the jury found that the engineer was under the control of the brakeman as to slacking up and going ahead, and that the engineer obeyed the signals given him by the brakeman ; and it appears that the latter was on a car not seemingly in a place of unusual danger when he was jolted off at the crossing of another railroad track. In the present case, however, the brakeman was known by the engineer to be in a place of unusual peril, with a very slight foothold, and little opportunity of steadying himself; and the evidence on the part of the plaintiff shows that the engine was moved suddenly and rapidly after the pulling of the pin, without any signal from French. As to the plan of taking out the cars and putting them in the train by the method of a flying switch, the conductor testified that he did not remember of giving any orders, but that it was just a mutual understanding that it Avas necessary to do it that Avay, and that they did the work just as they had always done in taking cars out from that track to place in a train ; and the fact that the conductor took a position at the east switch-stand of the stock track is a circumstance tending to show that he expected the work to be done by means of a flying SAvitch. And if this was the usual and quicker method, and that which the conductor either ordered or acquiesced in, we cannot declare, as a matter of law, that French was guilty of negligence by participating in the work, although it was not the safest method ; and whether [591] he was in the exercise of ordinary care or not was a question for the jury to determine; and there was evidence of negligence on the part of the engineer which, if credited by the jury, was sufficient to justify their general verdict in favor of the plaintiff below. IY. The verdict was for the sum of $4,500, and the plaintiff in error claims that this is excessive. At the date of his death Frank French was 34 years of age, and his life expectancy was 32 years. He was the only son of the plaintiff, a widow, then 59 years of age, and was a single man, earning $60 to $75 per month, and he had resided with and wholly supported his mother for 10 years. The trial court approved the verdict, and it is not so excessive as to warrant interference by this court. Some questions are raised upon the admission of testimony and as to certain answers _ to particular questions of fact, but we do not deem them material. The judgment will be affirmed. All the Justices concurring.