Full text
Rapp v. The St. Joseph & Iowa Railroad Company
Barclay, J.
This action was brought under the damage act ( R. S. 1889, ch. 49 ) for the negligent killing of Henry Rapp, the late husband of plaintiff.
The judgment in the trial court cannot be supported in view of several recent decisions here.
I. The case was submitted to the jury so as to authorize a verdict for plaintiff in the sum of $5,000, if
[428] the jury found that the death of the plaintiff’s husband resulted from negligence of the defendant in permitting weeds, brush or other obstructions to exist on its right of way near the public crossing at which Mr. Rapp was killed.
The fixed sum of $5,000 is only recoverable of a railway company when the death of some individual (not a passenger) is caused by the negligence of the company’s servants “ whilst running, conducting or managing any locomotive, car or train of cars.”
When such death results • from other actionable negligence than that just mentioned (R. S. 1889, sec. 4426), the jury should assess the damages at a sum “ not exceeding $5,000,” as prescribed in section 4427, Revised Statutes, 1889.
This was expressly decided in Crumpley v. Railroad (1888), 98 Mo. 34, and must now be accepted as the settled law.
It was, therefore, error in the circuit court to sustain a recovery for $5,000, based on a finding of negligence not embraced within the range of section 4425, Revised Statutes, 1889.
II. The court furthermore instructed that “the law presumes deceased did exercise such” (ordinary) “care,” in the face of abundant proof from which (to put it mildly) the jury might reasonably have found the deceased negligent. That line- of instruction was disapproved in Moberly v. Railroad (1889), 98 Mo. 183, and there is nothing in this case to repel the application of the ruling made in that just cited.
We need not pause to consider he other points urged on this appeal.
The errors already mentioned are such as necessitate the reversal of the judgment, which is accordingly ordered, and the cause remanded for further proceedings, with the assent of all the judges of this division.