Giersch v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 98 Kan. 452
• 158 P. 54
• 1916 Kan. LEXIS 107

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Wrongful Death — Action by Widow — Pleadings—Evidence—Carbon Copies of Railroad Records — Competent. In an action brought by a widow to recover for the death of her husband who was killed while engaged in the work of switching, the answer consisted of a general denial and the averments of contributory negligence and assumption of risk. In the defendant’s testimony it appeared that the car against which the deceased was crushed was at the time an interstate car. This evidence was first received over objection and afterwards stricken out. Held, that it was properly received and erroneously stricken out.</p> <p>2. Same — Action Brought under State Statute — Evidence Showed Right to Recover under Federal Statute Only. The testimony referred to in the foregoing paragraph brought the liability of the defendant, if any, for the death of the deceased under the federal employers’ liability act exclusively, and as the widow can not maintain an action thereunder she can not recover herein.</p> <p>3. Same — Pleadings—Proper Evidence. While ordinarily any defense to be relied upon should be pleaded, the question here is one of the capacity of the plaintiff to maintain the action and her incapacity was proper to be shown under the pleadings as they were framed.</p> <p>4. Same — Carbon Copies — Competent Evidence. The testimony referred to consisted of carbon copies of official railroad reports made in the usual course of business and was competent.</p> <p>5. Same. The fact that without specific and serious objection on the ground that the witness was permitted to testify as to the contents of such carbon copies instead of their being formally introduced in evidence, held not to constitute material error.</p>